Order Code RL30808
Report for Congress
Received through the CRS Web
Government at the Dawn of the 21st Century: A
Status Report
January 17, 2001
name redacted
Specialist in American National Government
and Project Coordinator
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Government at the Dawn of the 21st Century: A Status
Report
Summary
Shortly after the beginning of the 20th century, the federal government entered
a new phase—the rise of the administrative state. Among the forces propelling this
development was the Progressive Movement, which sought greater government
engagement with and regulation of various sectors of American society. An
autonomous Department of Labor, with Cabinet status, was established in 1913, along
with the Federal Reserve. The Federal Trade Commission was created the following
year. With the entry of the United States into World War I, regulatory activities
further expanded, and the number of administrative agencies and federal employees
increased. With the postwar era, the expansion of the federal government
momentarily slowed, but began again with the onset of the Great Depression and the
launching of the New Deal. The colossus that was constructed to combat the national
economic emergency was soon refashioned and augmented to enable the United
States to victoriously end a world war. With the return to peace in 1945, the federal
government stood as a giant complex organization, with over 3.8 million employees.
During the next 45 years, it would continue to expand in terms of both its principal
units and resources. In the immediate past few years, however, some downsizing has
occurred.
This report reviews trends regarding various aspects of the operations of the
federal government during the past 50 years, as evidenced by personnel, budget, and
other data. It also identifies and discusses, in cameo form, various developments
during this period that are considered significant for federal operations during the next
century. Some of these are crafted innovations, such as mission performance planning
and measurement; some are imposed restraints, such as the Supreme Court’s
Chadha
decision rendering so-called congressional or legislative vetoes unconstitutional.
Some developments are still evolving, such as the electronic government
phenomenon, and await conclusive assessment. This report is intended to provide
background or contextual information and will not be updated.
Contributors to This Report
Keith A. Bea
Unfunded Mandates
Eugene P. Boyd
Federalism
Mildred Boyle
Report Production Support
Benjamin Canada
Grants-in-aid
(name redacted)
Workload Trends: Regulatory Activity
(name redacted)
Personnel Trends: Executive Branch
(name redacted)
Executive Order vs. Statutory Policymaking
(name redacted)
Inspectors General
(name redacted)
Budget Trends: Executive Branch Outlays
Budget Trends: Federal Government Outlays
Financial Management Improvement
Impoundment Control and Item Veto Restraints
Performance Management and Budgeting
(name redacted)
Budget Trends: Legislative Branch Outlays
Personnel Trends: Legislative Branch
Principal Units Trends: Congressional Committees and Subcommittees
Workload Trends: Legislative Activity
(name redacted)
Chadha Decision
Open Government
E-government
Outsourcing and Privatization
Principal Units Trends: Executive Departments and Agencies
Steven Rutkus
Budget Trends: Judiciary Outlays
Personnel Trends: Judicial Branch
Principal Units Trends: Federal Courts
Workload Trends: Judicial Activity
(name redacted)
Decentralization of Personnel Management
Personnel Trends: Executive Branch
(name redacted)
Federal Civilian Procurement
Contents
Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Workload . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Grants-in-aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Federal Civilian Procurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Principal Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Developments: Innovations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Open Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Inspectors General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Performance Management and Budgeting . . . . . . . . . . . . . . . . . . . . . . . . 32
Financial Management Improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Developments: Restraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Chadha Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Impoundment Control and Item Veto Restraints . . . . . . . . . . . . . . . . . . . 38
Unfunded Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Developments: Evolving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Executive Order vs. Statutory Policymaking . . . . . . . . . . . . . . . . . . . . . . 40
Outsourcing and Privatization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
E-government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Decentralization of Personnel Management . . . . . . . . . . . . . . . . . . . . . . . 50
Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
For Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
List of Tables
Table 1. Total Outlays for the Federal Government, Selected Years . . . . . . . . . 2
Table 2. Total Outlays for the Legislative Branch, Executive Branch Agencies, and
the Judiciary, Selected Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Table 3. Congressional Staff and Agency Employment, Selected Years . . . . . . . 5
Table 4. Executive Nominees and Career Civilian Employment, Selected Years . 7
Table 5. Executive Schedule Changes, Selected Years . . . . . . . . . . . . . . . . . . . 8
Table 6. Total Judicial Employees, Authorized Article III Judgeships and Supreme
Court Employees, Selected Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Table 7. Legislative Workload, Selected Measures, Selected Years . . . . . . . . . 13
Table 8. Final Rules and Regulations Published in the
Federal Register,
1982-1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Table 9. Judicial Workload, Cases or Appeals Terminated or Disposed of by U.S.
District Courts, U.S. Courts of Appeals, and Supreme Court of the United
States, 1950 to 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Table 10. Federal Grants-in-aid to State and Local Governments . . . . . . . . . . 19
Table 11. Senate Committees and Subcommittees, Selected Congresses . . . . . 22
Table 12. House of Representatives Committees and Subcommittees, Selected
Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Table 13. Principal Organizations of the Executive Branch, Selected Years . . . 25
Table 14. Number of Federal Judicial Circuits and Districts, Selected Years . . 27
Government at the Dawn of the 21st Century:
A Status Report
As the federal government embarked upon the first year of the 20th century, the
United States consisted of 45 states and the territories of Arizona, New Mexico,
Oklahoma, and Hawaii. Congress counted 86 Senators (four vacancies) and 389
Representatives (two vacancies). The Senate conducted its business with 55 standing
and eight select committees; the House of Representatives performed its functions
with 58 standing and four select committees. President William McKinley was about
to begin his second term of office, but would serve little more than eight months into
the new year before being felled by an assassin. Eight departments were represented
in the Cabinet, and these, together with 10 other principal entities, including the
National Home for Disabled Volunteer Soldiers and the Soldiers’ Home, constituted
the major units of the executive branch.1 The American public, numbering over 76
million people, were being served by some 231,000 executive branch civilian
employees, 5,690 legislative branch employees, and 2,730 judicial branch employees
of the federal government.2
As the first decade of the 20th century elapsed, the federal government entered
a new phase—the rise of the administrative state. Among the forces propelling this
development was the Progressive Movement, which sought greater government
engagement with and regulation of various sectors of American society. An
autonomous Department of Labor, with Cabinet status, was established in 1913, along
with the Federal Reserve. The Federal Trade Commission was created the following
year. With the entry of the United States into World War I, regulatory activities
further expanded, and the number of administrative agencies and federal employees
increased. With the postwar era, the expansion of the federal government
momentarily slowed, but began again with the onset of the Great Depression and the
launching of the New Deal. The colossus that was constructed to combat the national
economic emergency was soon refashioned and augmented to enable the United
States to victoriously end a world war. With the return to peace in 1945, the federal
government stood as a giant complex organization, with over 3.8 million employees.
During the next 45 years, it would continue to expand in terms of both its principal
units and resources. In the immediate past few years, however, some downsizing has
occurred.
This report reviews trends regarding various aspects of the operations of the
federal government during the past 50 years as evidenced by personnel, budget, and
1Source: data are derived from U.S. Congress, Joint Committee on Printing,
Congressional
Directory, 56th Cong., 2nd sess. (Washington: GPO, 1901).
2U.S. Department of Commerce, Bureau of the Census,
Historical Statistics of the United
States: Colonial Times to 1970 (Washington: GPO, 1975), pp. 8, 1102.
CRS-2
other data. It also identifies and discusses, in cameo form, various developments
during this period that are considered significant for federal operations during the next
century. Some of these are crafted innovations, such as mission performance planning
and measurement; some are imposed restraints, such as the
Chadha decision
rendering so-called congressional or legislative vetoes unconstitutional.3 Some
developments are still evolving, such as the electronic government phenomenon, and
await conclusive assessment.
Trends
Budget
Table 1. Total Outlays for the Federal Government, Selected
Years4
Fiscal Year
Current Dollars
Constant (FY1996)
Percentages
(in billions)
Dollars (in billions)
of GDP
1950
42.5
332.0
15.6
1955
68.4
444.2
17.3
1960
92.1
497.0
17.7
1965
118.2
571.7
17.2
1970
195.6
758.0
19.3
1975
332.3
903.3
21.3
1980
590.9
1,087.9
21.6
1985
946.4
1,300.4
22.9
1990
1,253.1
1,478.0
21.8
1995
1,515.8
1,550.6
20.7
2000 (est.)
1,789.5
1,670.3
18.7
The growth of the federal government in terms of total outlays during the past
50 years is shown in table 1. Outlay numbers reflect the amount of funds the
government actually spends in a given fiscal year. Total outlays for the federal
government increased from about $42.6 billion in FY1950 to nearly $1.8 trillion in
FY2000. The increasing size of the federal budget is reflected in outlay figures
expressed in both current (or nominal) dollars and constant dollars, the latter
3
INS v.
Chadha, 462 U.S. 919 (1983).
4 U.S. Office of Management and Budget,
Budget of the United States Government Fiscal
Year 2001, Historical Tables (Washington: GPO, 2000), pp. 104-109.
CRS-3
involving the use of a deflator to convert all the numbers to the same base (FY 1996
dollars). The conversion to constant dollars removes the impact of inflation (or
deflation), and provides a more accurate picture of the relative change over time.
Using constant (FY1996) dollars, total outlays more than doubled from 1950 to1970
(from $332 billion to $758 billion), and then more than doubled again in the next 20
years (from $758 billion in FY1970 to almost $1.5 trillion in FY1990); during the 50
years from 1950 to 2000, total federal outlays in constant dollars increased over
400%.
It is also useful to assess the growth of the federal budget in comparison to the
size of the U.S. economy. Gross Domestic Product (GDP) provides a common
measure of the size of the economy; it reflects total production of goods and services
within the United States in the given year. The column on the far right in table 1
provides data on total federal outlays as percentages of GDP. In FY1950, federal
outlays amounted to 15.6% of GDP, and increased rather steadily until a peak was
reached in FY1985, when total outlays represented nearly 23% of GDP. In the past
15 years, federal outlays as a percentage of GDP have declined; the estimated figure
for FY 2000, with total outlays representing under 19% of GDP, is the lowest figure
(at least for the five-year intervals included in table 1) since FY1965.
Table 2. Total Outlays for the Legislative Branch, Executive
Branch Agencies, and the Judiciary, Selected Years5
Fiscal Year
Legislative Branch
Exec. Branch Agencies
The Judiciary
(current dollars,
(current dollars,
(current dollars,
in millions)
in millions)
in millions)
1962
196
106,568
57
1965
212
117,941
75
1970
353
195,163
133
1975
739
331,309
284
1980
1,224
589,156
567
1985
1,610
943,847
966
1990
2,241
1,249,311
1,646
1995
2,625
1,510,309
2,903
2000 (est.)
3,197
1,781,987
4,378
5 U.S. Office of Management and Budget,
Budget of the United States Government, Fiscal
Year 2001, Historical Tables, pp. 65-74. Derived from a table titled “Outlays by Agency,”
the figures for the executive branch agencies were computed from the OMB source table as
the residual totals, after subtracting the lines for the Legislative Branch and the Judiciary; the
author wishes to acknowledge the assistance of Phillip Winters, Government and Finance
Division, in compiling these figures for the executive branch agencies. This OMB source
table begins with FY1962 and provides data only in current dollars.
CRS-4
After several years of modest, steady growth in the 1950s and 1960s, legislative
branch spending in the mid-1970s took a sharper, upward swing, with outlays more
than doubling between1970 and1975, and more than tripling through the 1970s. This
increased spending was due primarily to congressional implementation of the
Legislative Reorganization Act of 1970, which increased the budgets and staffs of
congressional committees and support agencies. The creation of the House and
Senate Budget Committees and the Congressional Budget Office in 1974 and funding
for the development of House and Senate computer capabilities during the 1970s and
1980s also account for increases. In contrast with executive branch spending, growth
of spending in the legislative branch has been steady across all organizational units,
and, following the decade-long upgrade of institutional capacity in the 1970s, the
1980s and 1990s were characterized by steady decreases in the rate of spending
growth.
Agencies and entities included under “Executive Branch Agencies” in the data
provided in table 2 constitute a disparate group, comprising all components of the
federal government except those of the legislative branch and the judiciary. Among
these are the 14 Cabinet departments—Agriculture, Commerce, Defense, Education,
Energy, Health and Human Services, Housing and Urban Development, Interior,
Justice, Labor, State, Transportation, Treasury, and Veterans Affairs—as well as
some of the larger nondepartmental agencies, which are individually identified, such
as the Corps of Engineers, Environment Protection Agency, Federal Emergency
Management Agency, General Services Administration, National Aeronautics and
Space Administration, National Science Foundation, Office of Personnel
Management, and Small Business Administration. There are also groupings for
“Other Defense Civil Programs,” “International Assistance Programs,” the agencies
of the Executive Office of the President, and the remaining “Other Independent
Agencies.” The data also reflect outlays for the Social Security Administration (both
on-budget and off-budget).
As shown in table 2, total outlays in current dollars for executive branch agencies
reflect continuing growth during the latter half of the 20th century. The percentage
distribution of all federal outlays going to executive branch agencies remained steady
at 99.7% throughout most of the period, with a slight decline to 99.6% for FY1995
and FY 2000. While beyond the broad trends purview of this report, a more detailed
examination of outlays within the executive branch during the period might show
changing patterns in the relative distribution of spending among the various agencies
and departments.
Judiciary outlays derive from more than 10 separate accounts funding the
Supreme Court, the lower federal courts, and related judicial services.6 The
6 The largest of these accounts funds the salaries of circuit and district judges, retired justices
and judges, judges of the U.S. Court of Federal Claims, bankruptcy judges, magistrate judges,
and all other officers and employees of the federal judiciary not specifically provided by other
accounts. Other accounts fund the compensation and reimbursement of attorneys appointed
to represent criminal defendants in federal trials, juror fees, the U.S. Court of International
Trade, the Administrative Office of the U.S. Courts, the Federal Judicial Center (which
(continued...)
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judiciary’s budget does not include funds for three “special courts” in the federal
court system—the U.S. Court of Appeals for the Armed Forces and U.S. Court of
Appeals for Veterans Claims (both funded in the executive branch budget) and the
U.S. Tax Court (funded in the legislative branch budget). The judiciary’s budget has
increased dramatically over the last 35 years. Total outlays for the judiciary in current
dollars roughly doubled every five years between 1965 and 1980, then increased 70%
between 1980 and 1985, 76% between 1990 and 1995, and 50% between 1995 and
2000. Steady increases in the judiciary budget in recent decades paralleled substantial
workload growth for the judiciary during the same time frame.
Personnel
Legislative Branch
Table 3. Congressional Staff and Agency Employment, Selected
Years7
Year
Congressional
Congressional
Legislative
Staff
Agency Staff
Branch Total
1950
NA
NA
NA
1955
5,706
15,761
21,467
1960
6,866
15,651
22,517
1965
8,754
16,728
25,032
1970
11,127
18,523
29,811
1975
17,039
20,264
37,303
1980
18,838
19,862
38,700
1985
19,488
18,590
38,078
1990
19,181
17,557
36,738
1995
17,453
14,606
32,059
2000
17,063
12,928
29,991
Congressional staffing over the past 50 years, as indicated in the table above, can
be broken down into four distinct periods. During the 1950s and 1960s, staffing
6(...continued)
provides the lower courts with research and educational program support), and the U.S.
Sentencing Commission (an independent agency in the judicial branch, which establishes
sentencing policies and practices for the courts).
7Source: U.S. Office of Personnel Management, various years; December figures for all years
except 2000, which are from May.
CRS-6
levels were characterized by modest, steady growth. This pattern gave way to a
sharper increase in congressional staff throughout the 1970s, pursuant to
implementation of the 1970 Legislative Reorganization Act. By the 1980s, legislative
branch employment was essentially flat, stabilizing at post reorganization levels
considerably higher than those seen before the reorganization act. The early 1990s
were characterized by a significant downward turn in staffing levels, and the
emergence of what may be another period of stability at the end of the decade.
Congressional staff growth accounts for a greater part of the overall increase in
legislative branch employment than does congressional agency staff growth. In 1960,
6,866 people were assigned to member, committee, and other congressional offices.
Congressional agencies employed 15,651.8 By 1969, those numbers had increased to
10,721 and 18,112, respectively, an increase of 3,855, or 56.15%, in congressional
staff, and 2,461, or 15.72%, in agency staff. This disproportionate growth continued
throughout the 1970s; during the 1980s, legislative branch employees were effectively
evenly divided between congressional staff and congressional agency staff. In the
1990s, both congressional staff and agency staff numbers declined significantly, but
the decline was higher for agency staff, at 19.09%, than the 12.96% congressional
staff downturn. Thus, the relationship of more agency staff than congressional staff
that characterized the 1950s, 1960s, and 1970s reversed by the end of the century.
8Congressional agencies include the General Accounting Office, Congressional Budget Office,
Architect of the Capitol, Botanic Garden, Government Printing Office, and Library of
Congress.
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Executive Branch
Table 4. Executive Nominees9 and Career Civilian Employment,10
Selected Years
Year
Military
Postmaster
Civilian
Total
Career
Noms.
Noms.
Noms.
Noms.
Civilians
1950
28,822
1,477
1,656
31,955
2,052,000
1955
37,467
1,490
1,729
40,686
2,376,000
1960
40,248
1,696
2,598
44,542
2,403,000
1965
49,211
1,456
5,098
55,765
2,507,000
1970
57,878
3,427
61,305
2,961,000
1975
71,598
3,441
75,039
2,830,000
1980
64,732
3,853
68,585
2,933,000
1985
55,924
3,719
59,643
2,944,000
1990
42,570
2,364
44,934
3,173,000
1995
45,813
2,466
48,279
2,880,000
1999
20,381
3,259
23,640
2,708,000
Over the past 50 years, presidential appointments, as reflected in nominations
sent forward, have remained relatively constant. General civilian appointments and
promotions peaked in 1965, a fact that may be explained by the expansion of several
social programs in which civilian uniformed personnel were employed. The large
9 Sources: executive nominee data are from U.S. Congress, Senate,
Journal of the Executive
Proceedings of the Senate, vol. 121 (96th Cong., 1st sess.) and vol. 139 (105th Cong., 1st sess.),
“Table of Nominations Received...” in respective volumes, “Résumé of Congressional
Activity,”
Congressional Record, vol. 145, 106th Cong., 1st sess., Dec. 3, 1999. Note that,
with the creation of the U.S. Postal Service, postmasters were no longer political
appointments; note also that civilian (Public Health Service and other civilian uniformed
personnel) and military nominations include promotions as well as appointments.
10 Sources: career civilian employment data include the U.S. Postal Service and temporary
census workers—36,417 (1960), 33,000 (1970), 81,116 (1980), and 111,120 (1990)—but
exclude the Central Intelligence Agency, the National Security Agency, the Defense
Intelligence Agency (as of November 1984), and the National Imagery and Mapping Agency
(as of October 1996). Career civilian employment data for 1950-1995 are from U.S.
Department of Commerce, Bureau of the Census,
Statistical Abstract of the United States
(Washington: GPO, 1971, 1982-1983, 1986, 1999), pp. 388, 264, 322, 364. Career civilian
employment data for 1999 are from U.S. Office of Personnel Management, Office of Merit
Systems Oversight and Effectiveness,
Federal Civilian Workforce Statistics, Employment
and Trends As of November 1999 (Washington: GPO, 2000), p. 17.
CRS-8
number of military appointments and promotions during the 1970s reflects the
Vietnam era.
Most of the presidential appointments requiring Senate confirmation are to
positions on the Executive Schedule. The Executive Schedule, which includes
department secretaries to assistant secretaries and the heads of minor agencies, was
established in 1964.
Table 5. Executive Schedule Changes, Selected Years11
Executive Schedule (5 U.S.C. 5312-5316)
U.S. Code
Edition
Level I
Level II
Level III
Level IV
Level V
Total
1964
(5 U.S.C. 2211)
10
19
50
210
126
415
1982
14
31
87
315
192
639
1999
18
42
66
345
143
614
Table 5 has been developed to reflect the changes in the Executive Schedule over
the past 36 years. Many other positions in the federal system are paid at rates equal
to the levels of the Executive Schedule, but are not listed in the Schedule. The
President is authorized to place positions in salary rates equal to Levels IV and V, and
other positions are created statutorily, but, due to technical errors in the statutes, are
not placed on the Schedule. The estimates shown in table 4 provide a usable snapshot
for the purpose of studying trends.
Executive branch civilian employment, shown in table 4, is indicated in terms of
on-board annual personnel averages. Among the significant trends associated with
civilian employment are growth during the Korean and Vietnam wars and decline
from 1993 through 1999, the years of the Clinton Administration.12 In March 1994,
with the enactment of the Federal Workforce Restructuring Act (FWRA),
employment limitations for fiscal years 1994 through 1999 were established, providing
for a reduction of 272,900 employees.13 The statute covered federal civilian executive
employment, not including the U.S. Postal Service.
Brookings Institution scholar Paul Light, based upon research he has conducted
over the past several years on the “huge numbers of ‘off-budget’ employees doing the
11 Source: data are derived from 1964 and 1982 editions of the
United States Code, along with
the most recent edition of the
United States Code Annotated; some numbers are estimates
because several of the positions are listed in multiples (members of...) without specific
numbers being identified.
12 For an analysis of federal employment prior to the Clinton Administration, see
Tax Notes,
vol. 58, Jan. 11, 1993, pp. 237-240.
13108 Stat. 111.
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government’s work,” has observed: “A more accurate count would have to include
not just the civil service, but also the uniformed military, postal workers, and the
contractor, grantee, state and local government workforce needed to deliver the
federal mission. This fuller accounting puts the total number of jobs attributable to
the federal government at 16.8 million in 1999.” Peter Zimmerman of the John F.
Kennedy School of Government at Harvard University responded, saying that “[t]he
reach of the federal government has in fact been reduced,” and that, for 200 years, the
Department of Defense and the U.S. Postal Service have employed the majority of
federal workers.14
14See Paul C. Light, “Pressure to Grow,”
Government Executive, vol. 32, Oct. 2000, pp. 22-
27; Paul C. Light,
The True Size of Government (Washington: Brookings Institution, 1999);
and Peter Zimmerman, “Not So Big,”
Government Executive, vol. 31, March 1999, pp. 39-
42).
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Judicial Branch
Table 6. Total Judicial Employees, Authorized Article III
Judgeships and Supreme Court Employees, Selected Years15
Fiscal
Total Judicial
Total Article III
Article III
Total
Year
Employees
Judgeships
Judgeships %
Supreme
(excluding S. Ct.)
(excluding S. Ct.)
of Total Jud.
Court
Employees
Employees
1950
4,345
282
6.5
195
1955
4,700
311
6.6
201
1960
5,562
326
5.9
198
1965
6,461
398
6.2
223
1970
7,395
513
6.9
238
1975
10,082
512
5.1
287
1980
14,011
663
4.7
358
1985
17,542
748
4.3
340
1990
22,490
748
3.3
355
1995
27,217
833
3.1
360
2000
31,576
839
2.6
437
15 Sources: total judicial employee numbers for 1950-1990 are from Richard A. Posner,
The
Federal Courts; Challenge and Reform (Cambridge, MA: Harvard University Press, 1996),
pp. 10-11; 1995 number is full-time equivalent (FTE) employees number for FY1995, minus
number for Supreme Court, in
The Judiciary; Budget Estimates for Fiscal Year 1997;
Congressional Submission, p. x; 2000 number is estimated FTE number for FY2000, minus
number for Supreme Court, in
The Judiciary; Budget Estimates for Fiscal Year 2001;
Congressional Submission, p. x.
Article III judgeship numbers are from the Administrative Office of the U.S. Courts.
Numbers account for judgeships in the U.S. Courts of Appeals and the U.S. District Courts
for all years in the table; the U.S. Court of International Trade from 1980 to the present; the
U.S. Customs Court to 1979; and the U.S. Court of Customs and Patent Appeals and the
Court of Claims to 1981.
Numbers for Supreme Court employees include the Court’s Justices and individuals
providing administrative and other services under the authority of the Supreme Court, plus
a smaller number of individuals assigned to the care of the Court’s building and grounds under
statutory authority granted to the Architect of the Capitol. Numbers for the years 1950-1995
are from Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker,
The
Supreme Court Compendium; Data, Decisions, and Developments, 2nd edition (Washington,
Congressional Quarterly, 1996), pp. 51-52 and, for 1995 and 2000, from the FY1997 and
FY2001
Congressional Submission documents cited above in this note.
CRS-11
The workforce of the federal Judiciary consists of the Chief Justice, eight
Associate Justices, and support personnel of the Supreme Court, plus the judicial
officers and staff of a vast system of lower courts and judicial support agencies under
the central policymaking direction of the Judicial Conference of the United States.16
While the workforce of the Supreme Court, as shown in table 6, has a bit more than
doubled over the past half century, the total number of employees of the rest of the
Judiciary during that time has increased more than seven-fold, from fewer than 4,400
employees in FY1950 to more than 31,500 in FY2000. Apart from the Supreme
Court, today’s federal judicial workforce consists of the judges and staff of the 13
U.S. Courts of Appeals; the 94 U.S. District Courts (each including a district court,
bankruptcy court, and probation/pretrial services office); the U.S. Court of Federal
Claims; the U.S. Court of International Trade; the Territorial Courts in Guam, the
Virgin Islands, and the Northern Mariana Islands; and staff of the Judiciary’s two
support agencies, the Administrative Office of the U.S. Courts and the Federal
Judicial Center.
In its budget submission document to Congress for FY2001, the Judiciary
offered the following overview of the composition of its workforce: “There are 852
active Article III judgeships, 486 senior Article III judges, 447 magistrates judges, 16
federal claims judgeships, and 326 bankruptcy judgeships. Combined, there are more
than 2,000 judges presiding over the work of the judiciary. The judiciary is staffed
by over 30,000 dedicated employees who work in all areas of the federal court
system. They are employed as deputy clerks, court security officers, criminal defense
attorneys, interpreters, probation and pretrial services officers, court reporters, circuit
executives, librarians, staff attorneys, and law clerks.”17
The Supreme Court, the Courts of Appeals, the District Courts, and the Court
of International Trade are referred to as “Article III courts” since all were established
under Article III of the Constitution. Specifically, Article III provides for “one
Supreme Court, and ... such inferior Courts as the Congress may from time to time
ordain and establish.” It also provides that judges in these courts “shall hold their
offices during good Behaviour,” that is, they receive lifetime appointments, unlike
judges in certain specialized courts established by Congress under constitutional
authority other than Article III, where appointments are to fixed terms of various
lengths.
16 The Judicial Conference is the national governance body for the U.S. Circuit Courts, the
U.S. District Courts, and the U.S. Court of International Trade; comprising 27 judges and
chaired by the Chief Justice of the United States, it is convened twice a year in Washington,
DC.
17
The Judiciary; Budget Estimates for Fiscal Year 2001; Congressional Submission, p. 4.1.
The
Congressional Submission statement, in referring to “852 active Article III judgeships,”
overstates the correct number by four, apparently by including four Territorial Court
judgeships, which Congress established under authority of the Constitution other than Article
III. A separate, more authoritative historical table of federal judgeships, obtained from the
Administrative Office of the U.S. Courts, lists 848 Article III judgeships authorized as of
calendar year 2000, consisting of nine Supreme Court Justice positions and 839 lower court
Article III judgeships.
CRS-12
While the number of Justice positions on the Supreme Court has remained
constant, at nine, for more than 130 years, the total number of other Article III judges
has increased dramatically. Between 1950 and 2000, as Congress periodically
authorized additional Article III judgeships, their number tripled, from 282 to 839
(excluding the nine Supreme Court Justices). Even so, the rate of increase in Article
III judgeships from 1950 to the present has been much less than the rate of increase
in the total number of employees in the federal judicial system during the same period.
A leading authority on the Judiciary’s growth, writing in 1995, observed that Article
III judges had become, by that point, “a diminishing fraction of the total employees
of the federal court system.” This shrinkage, he said, began “well before 1960,
accelerated between 1970 and 1975, and continues unabated to this day.”18
The dramatic increase in the federal judicial workforce over the past half century
has coincided with an increasing number of claims that must be heard in federal
courts. This trend was underscored in a recent budget request to Congress, in which
the Judiciary noted that, over the past 20 years, Congress had enacted more than 200
new laws, many creating new federal crimes. As new criminal defendants and
“releasees” from prison continued to increase, the Judiciary noted, increased demands
were placed on the federal courts’ 7,500 probation and pretrial service program
officers, requiring, according to the Judiciary, a further increase in their numbers.19
Besides Article III judges, thousands of other federal employees perform in
judicial or judge-like roles, but are not regarded as being part of the federal judicial
workforce. Most notable among these are administrative law judges, who are
appointed by and work with federal agencies, and judges and support staff in
specialized “legislative courts” created by Congress under constitutional authority
other than Article III—namely, the U.S. Tax Court, the U.S. Court of Appeals for
Veterans Claims, and the U.S. Court of Appeals for the Armed Forces. The Office
of Personnel Management counts Tax Court and Court of Appeals for Veterans
Claims personnel as being part of the legislative branch workforce, and personnel in
the Court of Appeals for the Armed Forces as executive branch employees.
The growth in federal judicial employment described here, according to one
observer, “understates the expansion of the federal court system” by omitting the
number of people who work for the federal courts without government compensation.
Judicial employment numbers, this observer notes, fail to take into account law
students who work part-time for many federal judges while receiving credit from their
law schools (a practice “unknown thirty years ago”), private practitioners appointed
by district judges to represent civil litigants (“ also ... unknown thirty years ago”), and
the increased use of private practitioners or law professors as special masters paid for
by the opposing parties in litigation to assist judges.20
18 Richard A. Posner,
The Federal Courts: Challenge and Reform (Cambridge, MA: Harvard
University Press, 1996), p. 8.
19
The Judiciary; Budget Estimates for Fiscal Year 2001; Congressional Submission, pp. 4.3
and 4.6.
20 Posner,
The Federal Courts, p. 9.
CRS-13
Workload
Legislative Activity
Table 7. Legislative Workload, Selected Measures, Selected
Years
Congress
Public Bills
Private Bills
Total
Cong. Record
Years
Enacted Into
Enacted Into
Measures
Pages of
Law
Law
Introduced
Proceedings
81st Cong.
496
706
14,629
24,882
1949-1950
84th Cong.
637
759
14,983
27,723
1955-1956
86th Cong.
477
299
11,145
28,854
1959-1960
89th Cong.
810
473
26,566
55,326
1965-1966
91st Cong.
696
223
28,883
60,408
1969-1970
94th Cong.
588
141
24,284
67,012
1975-1976
96th Cong.
613
123
14,594
61,424
1979-1980
99th Cong.
664
32
11,602
60,836
1985-1986
101st Cong.
650
16
14,464
58,487
1989-1990
105th Cong.
394
10
9,143
48,739
1997-1998
When considering the legislative activities of Congress, a popular measure is the
number of bills enacted into law. As table 7 demonstrates, however, the number of
public bills so enacted reveals no particular upward or downward trend over the last
50 years.21 Other measures, such as private bills enacted into law and the total
number of measures introduced, reveal more consistent patterns of change. Taken
21A public bill is one that affects the public generally; a bill that affects a specified individual
or a private entity, rather than the population at large, is a private bill. A typical private bill
provides relief in immigration and naturalization matters and civil legal claims against the
United States.
CRS-14
together, they offer a mixed picture of legislative activity. Several trends stand out,
including a decrease in both the number of measures introduced and the number of
private bills enacted into law. Also of note is the increase in the volume of the record
of proceedings, which has grown even as legislative productivity has declined.
After a sharp increase from the 1950s to the 1960s, there has been, since the mid-
1970s, a steady decline in the number of bills and joint resolutions introduced. The
decline in public bills in the 1980s is largely due to a change in House rules allowing
multiple sponsors (cosponsors) of bills. The number of cosponsors allowed on an
individual bill was once so severely limited that many Members introduced identical
versions of popular proposals. In addition to fewer measures introduced, there has
been a sharp drop in the number of private laws enacted over the last 50 years. The
decline in private laws enacted cannot be traced to a specific rule change, but rather
to broad changes in immigration and government claims law, through which Congress
has delegated some of its authority, on matters that affect individuals, to executive
branch agencies for resolution.
While these data suggest a general decline in legislative productivity, they also
chart a steady rise in the record of legislative proceedings, indicating an upturn in the
attention given to legislative matters. The 84th Congress, 1955 through1956, enacted
637 public and 759 private bills into law. The proceedings of those efforts were
recorded in 27,723 pages of the
Congressional Record. Four decades later, the 105th
Congress, 1997 through 1998, passed almost 1,000 fewer bills, yet the proceedings
required almost twice as many pages of the
Congressional Record to chronicle.
These data offer a picture of legislative activity, but they should not be taken as
a definitive, reliable determination of congressional workloads. Statistics detailing
legislative productivity do not directly illuminate all facets of work carried out by a
Member of Congress, because they fail to account for time and effort spent carrying
out legislative and oversight activity at the committee level, representational duties
carried out in Washington, DC, and home districts, and constituent services carried
out through Member offices. Even though these activities are likely to take up more
of a Member’s working time than legislative activity, they are often interrelated and
carried out simultaneously, which causes difficulty in quantifying this activity in a
widely accepted manner. Thus, while legislative statistics demonstrate productivity
in one area of congressional service, they provide an incomplete picture of the work
of Congress and its Members.
CRS-15
Regulatory Activity
Table 8. Final Rules and Regulations Published in the Federal
Register, 1982-199922
New
Revisions
Elimin-
All
Year
Require-
of
ation of
Others
Total
ments
Require-
Require-
ments
ments
1982
294
1,530
299
4,165
6,288
1983
248
1,430
217
4,154
6,049
1984
260
1,350
162
3,383
5,155
1985
358
1,255
177
3,053
4,843
1986
366
1,267
142
2,814
4,589
1987
451
1,241
85
2,804
4,581
1988
395
1,250
74
2,978
4,697
1989
367
1,175
51
3,118
4,711
1990
313
1,038
50
2,933
4,334
1991
388
1,126
68
2,831
4,413
1992
335
1,136
68
2,616
4,155
1993
389
1,118
78
2,781
4,366
1994
416
1,216
68
3,166
4,866
1995
284
1,155
95
3,179
4,713
1996
255
1,362
177
3,169
4,963
1997
215
1,269
110
3,082
4,676
1998
243
1,036
59
3,560
4,898
1999
253
1,113
44
3,250
4,660
Since the early 1970s, Congress and the President have struggled to lessen the
perceived intrusiveness and cost of federal rules and regulations issued by over 100
federal agencies. During the past three decades, significant increases in the number
22Sources: data for 1982-1992 are from U.S. Executive Office of the President, Office of
Management and Budget,
Regulatory Program of the U.S. Government, April 1, 1992-
March 3, 1993 (Exhibit 18) (Washington: 1993), p. 623; data for 1993-1999 are from the
Regulatory Information Service Center, U.S. General Services Administration.
CRS-16
and scope of federal regulations and regulatory programs have challenged the reform
effort. In particular, regulations and regulatory agencies promulgating rules relating
to public health and safety, and the environment—the so-called “social” regulations
and regulatory programs—have, while providing substantial benefits, also levied
significant costs for society.
Regulatory reform efforts have focused on several areas: requiring agencies to
prepare cost-benefit analyses for major regulations, centralizing mandatory review and
clearance of new regulations in the Office of Management and Budget (OMB) and by
Congress, establishing control over regulatory agency budgets, setting sunset
limitations (automatic termination on a specific date) for regulations and regulatory
agencies, and expanding judicial review of regulations.
While Congress has not reached agreement on a comprehensive regulatory
reform bill, it has enacted several other important measures, including the Paperwork
Reduction Act,23 the Regulatory Flexibility Act,24 the Unfunded Mandates Reform
Act,25 the Small Business Regulatory Enforcement Fairness Act,26 and the
Congressional Review Act,27 among other legislation. Congress has also legislatively
deregulated specific sectors of the economy—for example, areas of
telecommunications, transportation, and other industries—previously subject to
federal regulation.
Regulatory activity, responding to changing conditions in American society,
remains vigorous. As previously stated, Congress and the President continue their
efforts to mitigate the perceived intrusiveness and cost of this activity. In the absence
of a consensus on a comprehensive regulatory reform bill, smaller scale efforts are
likely to continue. Contending factions remain split, however, over the degree of risk
a society should reasonably tolerate regarding health, safety, and environmental
matters, as well as how best to determine and evaluate such risk.
2394 Stat. 2812; recodified at 109 Stat. 163; 44 U.S.C. 3501 et seq.
2494 Stat. 1164; 5 U.S.C. 601 note.
25109 Stat. 48; 2 U.S.C. 1501 et seq.
26110 Stat. 857; 5 U.S.C. 601 note.
27110 Stat. 868; 5 U.S.C. 801 et seq.
CRS-17
Judicial Activity
Table 9. Judicial Workload, Cases or Appeals Terminated or
Disposed of by U.S. District Courts, U.S. Courts of Appeals, and
Supreme Court of the United States, 1950 to 1999.28
Year
District Courts
Courts of
Supreme Court
Appeals
Civil Cases
Criminal
Appeals
Total Cases
Written
Terminated
Cases
Terminated
Disposed of
Opinions
Terminated
1950
53,259
37,414
3,064
1,202
91
1955
58,974
38,580
3,654
1,630
82
1960
61,829
29,864
3,713
1,911
110
1965
65,478
32,078
5,771
2,665
97
1970
80,435
36,819
10,699
3,167
109
1975
104,783
43,515
16,000
3,632
138
1980
163,869
28,606
21,932
4,096
123
1985
272,356
38,190
32,403
4,103
146
1990
214,435
44,570
38,790
5,283
112
1995
229,820
41,527
49,805
6,506
75
1999
272,526
56,511
54,088
7,374
77
For many decades prior to 1960 (except during the National Prohibition years),
caseload growth, shown in table 9, had been moderate in the U.S. district courts and
slight in the courts of appeals. Since then, caseload growth has been great in both,
except during the early and mid-1990s, when caseload levels dipped in the district
courts. In the quarter century period from 1960 to 1985, the number of cases
terminated (action completed) in the district courts more than tripled, from 91,693 to
310,546. Growth had been larger on the civil than on the criminal side of the district
courts’ calendar, even when “criminal” was defined to include post-conviction
28Sources: Administrative Office of the U.S. Courts, Office of Legislative Affairs, all years’
numbers for the district courts and courts of appeals; Lee Epstein, Jeffrey A. Segal, Harold
J. Spaeth, and Thomas G. Walker,
The Supreme Court Compendium: Data, Decisions, and
Developments, 2nd edition, pp. 77-79 and 84-95, numbers for the Supreme Court for 1960-
1995; “The Supreme Court, 1999 Term; The Statistics,”
Harvard Law Review, vol. 114,
November 2000, pp. 394 and 402, numbers for the Supreme Court’s October 1999 term.
CRS-18
proceedings and other prisoner petitions.29 Between 1985 and 1995, however, the
district courts’ overall caseload dropped, from 310,546 terminations in 1985 to
271,347 in 1995, primarily on the civil side, with declines greatest in federal contract,
social security, and diversity of citizenship cases. Since then, the district courts’
caseload has witnessed an upsurge. With significant increases in both criminal and
civil caseload, overall case terminations in 1999 rose to 329,037—21% more than
in 1990 and 6% more than in 1985.
The increase in district court caseload has been dwarfed by the increase in courts
of appeals cases—from 3,713 appeals terminated (action completed) in 1960 to
54,088 terminated in 1999 (an almost 14-fold increase). By 1995, one judicial
authority has observed, it was possible to “infer that the federal courts of appeals have
become primarily criminal courts of appeals; more than half the total docket now
consists of criminal or prisoner cases.”30
The 7,374 cases that the Supreme Court disposed of during its October 1999
term were a record number, reflecting a steady increase in the annual number of cases
brought over the preceding five decades, and dwarfing the Court’s caseload level of
almost a half century earlier—1,202 cases disposed of in 1950. This long-term
growth in caseload, one scholar notes, reflected, in the 1950s and 1960s, the
development of interest groups that assisted litigants in carrying litigation through the
courts, a massive growth in the activities of the federal government, which “produced
new laws and legal questions,” and the Court’s “considerable sympathy to challenges
to government action based on alleged violations of civil liberties.”31 After a slower
rate of caseload growth in the 1970s through the mid-1980s, a second period of rapid
growth took place thereafter—with 7,374 cases disposed of in the 1999 term
representing an 80% increase over the 4,103 cases disposed of in 1985. This new rise
in cases “was entirely in papers’ petitions,” the bulk coming from prisoners or criminal
defendants—despite recent rulings by the Court and laws passed by Congress to limit
the use of habeas corpus actions to challenge criminal convictions.32
Another notable trend was that, beginning in the late 1980s, the Court’s justices
reduced the volume of cases they decided on the merits. By the Court’s 1999 term,
its annual number of cases accepted and the number decided with full, signed opinions
had declined by about half, compared with 1985 levels. The central factor explaining
29Posner,
The Federal Courts, p. 59.
30 Ibid., p. 64. The author, at the time, was Chief Judge of the U.S. Court of Appeals for the
Seventh Circuit. Judge Posner, on page 67, cautions that statistics on appellate terminations,
by themselves, may be misleading as workload indicators since many appeals are dismissed
summarily or terminated simply by being consolidated with other pending cases. Almost half
of all federal civil appeals, he notes, are disposed of before being fully briefed and argued or
submitted without argument.
31Lawrence Baum,
The Supreme Court, 7th edition (Washington: Congressional Quarterly
Press, 2001), p. 117.
32Ibid., pp. 118-119.
CRS-19
this reduction, according to one authority, was that “the justices collectively have
raised their standards for granting [writs] of certiorari.”33
Grants-in-aid
Table 10. Federal Grants-in-aid to State and Local
Governments34
Fiscal Year
Outlays in Billions of
As Percentages of
Constant (FY 1992)
Federal Outlays
Dollars
(constant dollars)
1950
17,405
5.3
1955
20,239
4.7
1960
35,157
7.6
1965
50,295
9.2
1970
88,743
12.3
1975
124,837
15.0
1980
153,373
15.5
1985
131,204
11.2
1990
141,433
10.8
1995
207,760
14.8
2000
235,730
15.9
Congress appropriates funds for grants to state and local governments to further
national goals and assist sub-national governments. Federal grants address numerous
substantive purposes, including community development, crime prevention, and
transportation. Since President Franklin D. Roosevelt initiated his New Deal
programs, the number and dollar amount of grant programs, the latter shown in table
10, have steadily increased. President Lyndon B. Johnson’s “Great Society”
programs increased the relative amount of funding to metropolitan areas, reflecting
the geographic distribution of the population. Many of these programs focused on
minority and disadvantaged populations. The “Great Society” initiative accounted for
the largest increase in federal outlays for grants during the second half of the 20th
century. During the administration of President Richard M. Nixon, Congress and the
President implemented new forms of federal aid called block grants and revenue
33Ibid., p. 121.
34Source: U.S. Office of Management and Budget,
Budget of the United States Government,
Fiscal Year 2001, Historical Tables, pp. 205-206; the “Other Grants” deflator from p. 170
was used to adjust for inflation.
CRS-20
sharing. These new forms of aid were designed to give states and localities greater
flexibility in using federal funds. The only period in which the grants-in-aid system
has not grown was during the early 1980s. Congress and President Ronald Reagan
created several block grants and reduced the amount spent on grant outlays. This halt
in the growth of the grant-in-aid system was brief: by the late 1980s, the number of
programs and amount of outlays was again increasing. Arguably, the most significant
change in the grants-in-aid system during the 1990s occurred when the 104th Congress
converted the open-ended entitlement grant, Aid to Families with Dependent Children
(AFDC), to a capped block grant called Temporary Assistance to Needy Families
(TANF).
Federal Civilian Procurement
Emergency World War II procurement procedures, and the rapid growth of new
technologies, provided the impetus for the establishment of a statutory basis for
federal postwar procurement. Enacted in 1949, the Federal Property and
Administrative Services Act established the General Services Administration (GSA)
to procure supplies and services, including buildings management, for the federal
civilian agencies.35 This enabling law subsequently evolved to provide an integrated
system of administrative procedures and controls for execution by GSA.36 The
Federal Acquisition Regulation (FAR) is a codification of uniform policies and
procedures for executive branch acquisitions that is prepared and maintained jointly
by the GSA Administrator, the Secretary of Defense, and the Administrator of the
National Aeronautics and Space Administration. The FAR is published as chapter 1
of Title 48 of the Code of Federal Regulations.
The continued growth of federal procurement during the 1950s and 1960s
resulted in a proliferation of complex and overlapping federal regulations that often
hindered an agency’s ability to procure the best goods and services at a low cost.
Potential vendors increasingly complained about the frustrating complexity of federal
specifications that controlled the production of goods. In 1969, Congress established
the Commission on Government Procurement to study the $50 billion procurement
process.37 The commission noted a void in procurement policy management, and
recommended the establishment of a central procurement policy office to issue policy
guidance within the executive branch. Based on these recommendations, the Office
of Federal Procurement Policy (OFPP) was established in 1974 to provide overall
direction of the nearly $80 billion procurement process.38 OFPP was reauthorized in
1979 for an additional four years, and again in 1983 for a similar period.39 In 1988,
Congress enacted legislation to establish OFPP permanently within the Office of
3563 Stat.377.
3640 U.S.C.475 et seq.
3783 Stat. 269.
3888 Stat. 796.
3993 Stat. 648, and 97 Stat. 1325.
CRS-21
Management and Budget.40 A Federal Acquisition Regulatory Council was created
to assist with the direction and coordination of approximately $179 billion in total
federal procurement.
The 103rd Congress enacted the Federal Acquisition Streamlining Act (FASA)
in 1994 as a comprehensive procurement reform designed to streamline the $180
billion federal acquisition process.41 Enactment of FASA revised existing procurement
law in an effort to simplify the government’s acquisition system that, after 50 years,
had become cumbersome and duplicative. The use of simplified acquisition
procedures and a greater reliance on commercial off-shelf products have reduced
impediments to federal procurement, which totaled approximately $186 billion in
1999.
Principal Units
Congressional Committees and Subcommittees
Long periods of gradual growth and intervals of decline in the number and size
of committees and subcommittees can be explained primarily by the major
congressional reorganization acts, periodic rules changes, party caucus reforms, and
informal changes to meet emerging needs and demands. The development of today’s
committee system is the product of internal congressional reforms, but national forces
also have played a role. The Great Depression and World War II greatly expanded
the legislative agenda and inspired the Legislative Reorganization Act of 1946, from
which the modern Congress is customarily dated.42 Outside forces also spurred a
second bicameral reorganization act 24 years later. New complex policy areas, an
increasingly dominant executive branch, and low opinion polls were cited by
supporters of the Legislative Reorganization Act of 1970.43 The periodic reforms of
the past 30 years have resulted from Members' responses to such developments, as
well as their desire to improve the organization and operation of their institution.
40102 Stat. 4055.
41108 Stat. 3242.
4260 Stat. 812.
4384 Stat. 1140.
CRS-22
Table 11. Senate Committees and Subcommittees, Selected
Congresses44
Congress
Standing
Select and Special
Joint
Years
Full Sub.
Full Sub.
Full Sub.
81st Cong.
15
63
2
NA
10
NA
1949-1950
84th Cong.
15
87
5
NA
10
11
1955-1956
86th Cong.
16
87
5
0
11
8
1959-1960
89th Cong.
16
92
3
6
11
14
1965-1966
91st Cong.
16
101
5
12
9
15
1969-1970
94th Cong.
18
122
6
13
7
14
1975-1976
96th Cong.
15
90
5
10
4
5
1979-1980
99th Cong.
16
88
4
0
4
6
1985-1986
101st Cong.
16
86
4
1
4
8
1989-1990
104th Cong.
17
69
4
0
4
0
1995-1996
106th Cong.
18
69
3
0
5
0
1999-2000
Among other changes, the 1946 act reduced the number of Senate standing
committees from 33 to 15. Since then, as table 11 indicates, the change has been
slight. The number increased, peaking at 18 in the mid-1970s. In 1977, the Senate
shifted committee jurisdictions and eliminated three standing committees (District of
Columbia, Post Office and Civil Service, and Aeronautical and Space Sciences), based
on a reform proposal by the first Temporary Select Committee to Study the Senate
Committee System (the “Stevenson-Brock Committee”). In the 97th Congress (1981-
1982), the Select Committee on Small Business was elevated to a standing committee;
16 standing committees have existed since then.45
44Sources: Data through the 101st Congress are taken from U.S. Library of Congress,
Congressional Research Service,
Committee Numbers, Sizes, Assignments and Staff: Selected
Historical Data, by (name redac t ed)
and (name redacted), CRS Report 96-109
(Washington: Feb. 1, 1996), p. 18; hereafter, CRS Report 96-106. Data for the 104th and
106th Congresses are derived from the
Congressional Yellow Book, Fall 1995 and Fall 2000.
45 The term “standing committees” refers to the permanent panels identified in chamber rules,
which also list the jurisdiction of each one. In their areas, standing committees consider bills
(continued...)
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The Senate has used more standing committees than any other type of committee
over the past 50 years. During this time, between one and seven select, special, or
other committees have handled particular issues for the Senate, with four such panels
existing since 1989. Senators, too, met with House counterparts to deal with business
affecting both bodies on between five and 11 joint committees from 1945 through
1978. During those years, Congress, on average, had nine joint committees. Since
the 96th Congress (1979-1980), four permanent joint committees have been
maintained, and an additional temporary joint committee was created in the 103rd
Congress (1993-1994), raising the count to five for that time. During the past four
Congresses, joint committees did not establish subcommittees, whereas in the earlier
years there were as many as 16 such subpanels.
Subcommittees, primarily a creation of standing committees, increased in
number, as well as importance, in the Senate from the 1940s to the 1970s. The figure
of 61 in the 80th Congress (1947-1948) more than doubled to 127 in the 93rd Congress
(1973-1974). The growth in the number of subcommittees reflects the federal
government’s expansion into new policy areas, efforts to disperse committee
leadership authority, and attempts to foster specialization.
Since the mid-1970s, periodic reforms have reversed the earlier trend of
increasing subcommittees. In 1977, the recommendations of the Stevenson-Brock
Committee led to a reduction of about one-fifth of the number of subcommittees
(from 122 to 96). The figure rose somewhat in the 1980s, partly because the Select
Committee on Small Business was elevated to a standing committee.
The number of Senate committees and subcommittees and assignments to them
were examined in 1984 by the second Temporary Select Committee to Study the
Senate Committee System (the “Quayle Committee”). Largely as a result of this
committee’s work, the numbers of assignments per Senator and of subcommittees
were reduced in 1985. Fourteen subcommittees of standing committees were
eliminated, leaving 88. This figure varied little until the 104th Congress (1995-1996),
which cut 18 subcommittees of standing committees. The reduction brought the
number of subcommittees to its lowest level since 1954. Reductions in committee
budgets, and concerns about the number of panels and assignments, prompted
committees to cut back on their subunits.
45(...continued)
and issues and recommend measures for consideration by the respective chambers, as well as
conduct oversight of agencies, programs, and activities. Most standing committees
recommend authorized levels of funds for government operations and for new and existing
programs within their jurisdictions. The term “non-standing committee” is used in this report
to describe the joint, select, special, and other panels of Congress. The joint committees
usually are permanent panels that conduct studies or perform housekeeping tasks rather than
consider measures. Members of both chambers serve on them. Conference committees,
temporary joint committees formed to resolve differences in House- and Senate-passed
versions of a particular measure, are not addressed by this report.
CRS-24
Table 12. House of Representatives Committees and
Subcommittees, Selected Congresses46
Congress
Standing
Select and Special
Joint
Years
Full Sub.
Full Sub.
Full Sub.
81st Cong.
19
62
2
NA
10
NA
1949-1950
84th Cong.
19
85
1
5
10
11
1955-1956
86th Cong.
20
120
1
7
9
13
1959-1960
89th Cong.
20
125
1
7
11
14
1965-1966
91st Cong.
21
130
2
6
9
15
1969-1970
94th Cong.
22
149
3
4
7
14
1975-1976
96th Cong.
22
150
5
8
4
5
1979-1980
99th Cong.
22
140
5
12
4
6
1985-1986
101st Cong.
22
138
5
9
4
8
1989-1990
104th Cong.
19
86
1
2
4
0
1995-1996
106th Cong.
20
89
1
2
5
0
1999-2000
Table 12 shows that, during the past 50 years, the number of House standing
committees has been stable, but the number of subcommittees increased considerably
from the 1940s through the 1970s. Total House and joint committees and
subcommittees peaked at 199 in 1975. Dramatic cuts, primarily in the past four
Congresses, have left 117 such panels. Today, as in the past, a House standing
committee is, on average, roughly twice as large as a Senate standing committee.
House subcommittees of standing committees currently are about two-thirds larger
than their Senate counterparts. The larger size of the House committees and
subcommittees is primarily due to the larger size of the chamber, more than four times
that of the Senate.
As the number of House committees and subcommittees increased during the
post-war period, so did the number of assignments per Representative. The average
doubled from three to six from 1947 to 1975, and grew to seven in 1987. Today’s
lower average of five assignments per Representative can be attributed to stricter
46CRS Report 96-106, p. 11. Data for the 104th and 106th Congresses are derived from the
Congressional Yellow Book, Fall 1995 and Fall 2000.
CRS-25
assignment limitations and cuts in the number of committees and subcommittees
during the past four Congresses.
Despite the reductions in assignments and committees and subcommittees, the
sizes of standing committees and subcommittees have moved upward during the 50-
year period reviewed here. Figures for 1995 reflect the largest average size. In 1995,
House standing committees and subcommittees averaged 40 and 15 Members
respectively; 18 was the average Senate standing committee size, with nine as the
average size for each subcommittee. Since then, the number of standing committees
has remained fairly constant, increasing gradually to a high of 22 in the 93rd Congress
(1973-1974). For the next two decades, the House operated with 22 standing
committees, dropping to 19 in the 104th Congress (1995-1996) and going to 20 in the
106th Congress (1999-2000).
Executive Departments and Agencies
Table 13. Principal Organizations of the Executive Branch,
Selected Years47
Year
Executive Office
Principal
Independent
of
Executive
Establishments
the President
Departments
1950
9
9
48
1955
8
10
57
1960
9
10
45
1965
10
10
46
1970
15
12
44
1975
15
11
59
1980
11
13
56
1985
9
13
57
1990
11
14
61
1995
9
14
62
2000
11
14
55
47Source: data are derived from the
United States Government Manual, selected years.
“Principal executive departments” does not include the Departments of the Army, Navy, and
Air Force; “independent establishments” does not include organizations listed as quasi-official
agencies, multilateral or bilateral organizations, or selected boards, commissions, and
committees.
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Overall, as table 13 indicates, the number of principal executive branch
organizations has grown during the past 50 years. The Executive Office of the
President averaged nine to 11 units. Expansion to 15 entities occurred during the
years of the Nixon Administration, reflecting the President’s strong reliance on aides
and assistants in close proximity to the Oval Office. However, most Presidents,
including Richard M. Nixon, have made varied use of the Executive Office.48
Considering the historical record, former presidential counsel Theodore C. Sorensen
has offered the observation that some Presidents use the Executive Office “as a farm
league, some use it as a source of experts and implementers, and some use it as
Elba.”49
Executive departments and independent establishments are created to administer
federal programs, and are occasionally reorganized into consolidated or larger units
to improve management and efficiency and economy of operations. The departments
grew by one from 1950 to 1955 with the 1953 creation of the Department of Health,
Education, and Welfare (HEW), which was largely an upgrading of the Federal
Security Agency. By 1970, another increase had occurred: the 1965 creation of the
Department of Housing and Urban Development, followed by the 1966 establishment
of the Department of Transportation, both moves constituting a consolidation of
federal programs and an elevation of their administration in response to increasing
urbanization. Later that year, legislation was enacted to replace the Department of
the Post Office, effective the following year, with the U.S. Postal Service and the
Postal Rate Commission. This change is reflected in the 1975 department decrease.
By 1980, however, two more additions had occurred: the Department of Energy was
mandated in 1977, another consolidation of federal programs and elevation of their
administration in response to various national energy concerns, and the relocation, the
next year, of HEW’s education programs in a new Department of Education. The
1988 elevation of the Veterans Administration to departmental status is the most
recent development.
Growth in the number of independent establishments in the mid-1950s reflects
the federal government’s reconversion from World War II mobilization and
preparation for the Cold War. Such entities as the Council of National Defense,
Displaced Persons Commission, Philippine War Damage Commission, War Claims
Commission, and War Contracts Price Adjustment Board soon disappeared. New
arrivals included the Civil Defense Coordinating Board, the Federal Civil Defense
Administration, the Foreign Claims Settlement Commission, the National Security
Training Commission, and the Subversive Activities Control Board. Further
adjustments during the Eisenhower Administration resulted in a foundation of 45
agencies for the successor Kennedy Administration. This number generally rose
during the Nixon, Reagan, and George H. W. Bush Administrations as new agencies
were created to administer economic, consumer, environmental, and energy programs.
During the past few years, efforts to cut the cost of government have resulted in a
notable reduction in the number of independent establishments, the Administrative
48The Executive Office of the President was established by Reorganization Plan 1 of 1939 (53
Stat. 1423), and was organized with E.O. 8248 of Sept. 8, 1939 (3 C.F.R., 1938-1943
Comp., pp. 576-579).
49Theodore C. Sorensen,
Watchmen in the Night (Cambridge: MIT Press, 1975), p. 100.
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Conference of the United States, the Advisory Commission on Intergovernmental
Relations, the Franklin D. Roosevelt Memorial Commission, the Interstate Commerce
Commission, the Pennsylvania Avenue Development Corporation, the United States
Arms Control and Disarmament Agency, and the United States International
Development Cooperation Agency being among those recently abolished.
Judicial Units
Table 14. Number of Federal Judicial Circuits and Districts,
Selected Years50
Year
Circuits
Districts
1950
11
91
1955
11
91
1960
11
91
1965
11
91
1970
11
93
1975
11
94
1980
12
95
1985
13
94
1990
13
94
1995
13
94
2000
13
94
During the past 50 years, the basic structure of the federal judicial system, and
the number of units making up that system, have undergone relatively little change.
Yet, within that structure, Congress, through legislation, has made various important
modifications, creating several new courts of specialized jurisdiction to supersede
already existing courts, splitting one geographically large court of appeals into two
circuits, and creating one appellate court of special subject matter jurisdiction within
the circuit court of appeals system.
Table 14 shows that, a half century ago, the federal trial courts consisted of 91
U.S. district courts, having jurisdiction to hear nearly all categories of federal cases,
including both civil and criminal matters. Today, there are 94 federal judicial districts,
including at least one district in each state, the District of Columbia, and Puerto Rico.
Three territories of the United States—the Virgin Islands, Guam, and the Northern
Mariana Islands—also have district courts that hear federal cases, including
bankruptcy cases.
50Source: all data are from the Administrative Office of the U.S. Courts.
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Besides trial courts of general subject matter jurisdiction, the federal system
historically has included various special trial courts having nationwide jurisdiction
over certain types of cases. In 1950, these included the U.S. Customs Court, having
jurisdiction in actions arising under the tariff acts. In 1980, Congress reconstituted this
court as the U.S. Court of International Trade, when it passed the Customs Court
Act, to implement broad judicial review powers enacted into law in the Trade
Agreements Act a year earlier. Shortly thereafter, in 1982, Congress established the
U.S. Claims Court, which succeeded the former Court of Claims in having jurisdiction
over claims seeking money judgments against the United States. In 1992, Congress
changed the name of the court to the U.S. Court of Federal Claims.
Also, a half century ago, the federal appellate court system consisted of 11
geographical circuits —10 denominated numerically as the First through the Tenth,
with the other being the District of Columbia Circuit. Today, there 12 regional
courts of appeals (the First through the Eleventh, plus the DC Circuit), each of which
hears appeals from the district courts located within its circuit, as well as appeals from
federal administrative agencies. The increase in geographical circuits, from 11 to 12,
occurred in 1980 when Congress passed legislation to divide the U.S. Court of
Appeals for the Fifth Circuit (made up of Alabama, Florida, Georgia, Louisiana,
Mississippi, and Texas) into two circuits. Pursuant to the legislation, the new Fifth
Circuit is made of up of Louisiana, Mississippi, and Texas, while a new Eleventh
Circuit consists of Alabama, Florida, and Georgia. More recently, in 1997, the Senate
passed legislation to split the nation’s largest geographic judicial circuit, the Ninth,
into two circuits, but that effort failed completion in the House of Representatives.
The federal appellate court system also includes a Court of Appeals for the
Federal Circuit, which Congress established in 1982. This court has nationwide
jurisdiction to hear appeals in specialized cases, such as those involving patent laws
and cases decided by the Court of International Trade and the Court of Federal
Claims. Upon its creation, it succeeded the former U.S. Court of Customs and
Patent Appeals, and assumed the appellate functions of the U.S. Court of Claims.
During the last half century, Congress passed legislation, as well, creating other
specialized federal courts outside the primary federal appellate and trial court system.
In 1969, legislation was enacted creating the U.S. Tax Court, which has jurisdiction
to try controversies involving deficiencies or overpayments in income, estate, and gift
taxes. In 1988, Congress statutorily created the U.S. Court of Veterans Appeals
(renaming it the U.S. Court of Appeals for Veterans Claims in 1998), giving it
exclusive jurisdiction to review decisions of the Board of Veterans Appeals.
CRS-29
Developments: Innovations
Open Government
When Congress enacted the Administrative Procedure Act (APA) in 1946,
provision was made for unpublished official records to be made available to persons
properly and directly concerned with a rulemaking matter. Allowance was also made,
however, for federal agencies to restrict such access to their records “in the public
interest” or “for good cause found.”51 A secrecy-minded bureaucracy, conditioned
by recent information restrictions prompted by global hostilities, fearful of Cold War
spies, and intimidated by zealous anti-Communist investigators within and outside of
government, was not eager to have its activities and operations disclosed to the
public, the press, or other government entities. The discretionary protections of the
APA and other statutes were applied to create a so-called “paper curtain” of secrecy.
At the urging of the press, House leaders created a special subcommittee in 1955 to
examine the availability of information from the executive departments and agencies.
By the early 1960s, this panel and a Senate counterpart subcommittee were actively
preparing corrective legislation to guarantee “the people’s right to know.” The
proposal, known as the Freedom of Information Act (FOIA), was ultimately approved
by Congress in 1966.52 No executive official supported the measure, and President
Lyndon B. Johnson, under pressure from the press, reluctantly signed it.
The FOIA would prove to be the first in a series of open government laws. It
established a presumptive right for any person—individual or corporate, regardless
of nationality—of access to identifiable, unpublished, existing records of the federal
departments and agencies without having to demonstrate a need or to even give a
reason for such a request. The burden of proof for withholding material sought by the
public is placed upon the government. The statute specifies nine categories of
information that may be protected from disclosure, and disputes over the availability
of records may be settled ultimately in court. Agency resistance to the law and other
changing circumstances would necessitate its amendment in 1974, 1976, 1986, and
1996, the last modification being made to accommodate access to information in
electronic form and formats.
Other open government laws, based upon the FOIA model, would soon follow.
The Federal Advisory Committee Act of 1972 made the meetings of federal advisory
committees presumptively open to public observation.53 The Privacy Act of 1974
gave American citizens and permanent resident aliens a presumptive right of access
to agency files maintained on them personally, and a right to correct the information
contained in such files through emendation.54 The Government in the Sunshine Act
of 1976 made the business meetings of collegially headed agencies presumptively
5160 Stat. 237at 238.
5280 Stat. 250; 5 U.S.C. 552.
5386 Stat. 770; 5 U.S.C. App.
5488 Stat. 1896; 5 U.S.C. 552a.
CRS-30
open to public scrutiny.55 The Presidential Records Act of 1978 made the official
records of the President and Vice President created after January 20, 1981, federal
property that was to remain under the custody and control of the Archivist of the
United States.56 It ended the longstanding practice of departing Presidents taking
their papers with them as personal property to dispose of as they might wish. The
John F. Kennedy Assassination Records Collection Act of 1992 established
arrangements for the collection, systematic review, and public availability of all official
records pertaining to the assassination of President Kennedy in 1963.57 Such laws
have contributed significantly to making the federal government the most open
government in the world today.
Inspectors General
Created to combat waste, fraud, and abuse in federal programs and operations,
the statutory inspector general (IG) office marks its 25th anniversary in 2001.
Inaugurated in the Department of Health, Education, and Welfare (now Health and
Human Services) in 1976,58 IG offices presently exist in nearly 60 federal
organizations, including all of the cabinet departments, the largest agencies, and
numerous other boards, commissions, foundations, and public corporations. Two
major statutes—the Inspector General Act of 1978 and 1988 amendments to
it59—mandate and empower the offices and obligate them, as well, to keep their
agency heads and Congress fully and currently informed about their findings and
recommendations. Importantly, the IG offices were established in response to major
financial scandals or other serious abuses of authority in some of the departments and
agencies. This misconduct was magnified at the time by the executive’s inability to
prevent, detect, or investigate these problems adequately, in part because of a lack of
coordination, power, independence, and resources among existing audit and
investigation entities.
Largely, two types of IGs have been created. In all of the cabinet departments
and larger agencies, the IG is appointed by the President, subject to Senate
confirmation, and can be removed only by the President or through the congressional
impeachment and removal process. In the smaller boards, commissions, foundations,
and public corporations, the IG is appointed by, and can be removed by, the agency
head. Two other statutory IG offices—both modeled on the provisions of the basic
IG act—have been established in the Government Printing Office, where the IG is
appointed by the agency head,60 and in the Central Intelligence Agency, where the IG
5590 Stat. 1241; 5 U.S.C. 552b.
5692 Stat. 2523; 44 U.S.C. 2201.
57106 Stat. 3443; 44 U.S.C. 2107 note.
5890 Stat. 2429.
5992 Stat. 1101 and 102 Stat. 2515; the amended Inspector General Act may be found in 5
U.S.C. Appendix.
60102 Stat. 2530.
CRS-31
is appointed by the President, with Senate confirmation.61 Coordination among the
first type of IGs occurs through the President’s Council on Integrity and Efficiency,
and for the second type, through the Executive Council on Integrity and Efficiency,
in accordance with Executive Order 12805 of May 11, 1992, chartering these
panels.62
Established as permanent, independent, nonpartisan entities, the offices are
authorized to conduct audits and investigations of agency programs and operations;
directly access agency records and data; issue subpoenas for all necessary information,
data, reports, and other documentary evidence; hire their own staff and obtain
adequate office space and operational resources; request assistance directly from
other federal, state, and local government agencies; and, in the offices in the federal
establishments, have their own line items in the budget. Except under rare
circumstances, spelled out in the law, an agency head provides only “general
supervision” over the IG, and may not interfere with any of his or her audits,
investigations, or subpoenas. In order to protect their impartiality and objectivity,
moreover, IGs are
not authorized to carry out any recommendations for corrective
action or make reforms themselves; and the Inspector General Act specifically
prohibits the transfer of “program operating responsibilities” to the IGs. Criminal
investigators in the IG offices in most of the cabinet departments and largest agencies
have been vested, by statute or special deputation of the Department of Justice, with
broad law enforcement authority.
The IGs also provide “one-stop shopping” for information about waste, fraud,
and abuse in agency programs. They are required to keep the agency head and
Congress fully and currently informed about problems and deficiencies related to the
administration of programs through various reports and other appraisals, including
meetings with legislators and staff and testifying before congressional committees.
The IGs must report their findings and recommendations semiannually to the agency
heads, who transmit these reports, unaltered, along with their comments, to Congress
within 30 days. In addition, the IGs are authorized to issue immediate reports on
particularly serious or flagrant problems to the agency heads, who must transmit
them, unaltered, along with any comments, to Congress within seven days. Whenever
an IG has reasonable grounds to believe that a violation of federal criminal law has
occurred, the Attorney General must be expeditiously so notified.
After a quarter century of experience, IG offices continue to evolve. The
capabilities and priorities of the offices differ according to the IGs’ training,
experience, and length of service; their individual priorities; existing practices of the
offices; and their resources, among other factors. In addition, the IGs’ orientations
may proceed along two different lines: some may adopt an “insider” strategy,
working closely with management to prevent problems and ensure the
implementation of their recommendations, while others may opt for an “outsider”
strategy, focusing on the detection and exposure of problems by developing an open
relationship with the agency workforce. In general, the IG offices have been, and
61103 Stat. 1711.
62See 3 C.F.R., 1992 Comp., pp. 299-302.
CRS-32
continue to be, an important innovation in promoting efficiency, economy, and
effectiveness in federal administration and management.
Performance Management and Budgeting
The Government Performance and Results Act of 1993 (GPRA or the Results
Act) seeks to promote greater efficiency, effectiveness, and accountability in federal
spending by establishing a new framework for performance management and
budgeting in federal agencies.63 GPRA establishes three types of ongoing planning,
evaluation, and reporting requirements for executive branch agencies: strategic plans
(covering six years, but revised at least every three years), annual performance plans,
and annual reports on program performance. In complying with GPRA, agencies
must set goals, devise performance measures, and then assess results achieved.
GPRA represents the latest in a series of initiatives taken over the past 50 years
attempting to link budget levels with expected results, so that spending decisions can
be better aligned with anticipated performance. This general perspective is commonly
referred to as “performance budgeting,” and should be viewed as an evolving, rather
than as a static, approach.64
In the aftermath of World War II, the (Hoover) Commission on Organization of
the Executive Branch of the Government, charged with promoting economy,
efficiency and improved services in the executive branch, included among over 270
recommendations a call for performance budgeting in the federal government. Some
of these recommendations were reflected in the Budget and Accounting Procedures
Act of 1950, and led to permanent changes in the presentation of the President’s
budget submission, such as “obligations by activities” tables.65
In the 1960s, the Planning-Programming-Budgeting-System (PPBS) was
introduced in the Defense Department, and subsequently was mandated for
governmentwide application by President Lyndon B. Johnson. PPBS attempted to
integrate planning and budgeting functions through modern systems analysis and cost-
benefit analysis to review alternatives, costs, and consequences. In 1973, President
Richard M. Nixon initiated Management by Objectives, primarily a management
improvement effort seeking to hold agency managers responsible for achieving
stipulated outcomes, and, further, linking the agreed-upon objectives to the agency’s
budget request. Still another reform effort followed in 1977, when President Jimmy
Carter brought Zero Base Budgeting (ZBB) to the federal government. With ZBB,
agencies were to prepare a series of decision packages to reflect alternative funding
levels; the intent was to link directly the expected program results with the level of
spending.
63107 Stat. 285.
64This conception of performance budgeting was suggested in a recent GAO report on the
subject; the brief review of past efforts which follows relies heavily on that source. See U.S.
General Accounting Office,
Performance Budgeting: Past Initiatives Offer Insights for
GPRA Implementation, GAO Report AIMD-97-46 (Washington: GPO, 1997).
6564 Stat. 832.
CRS-33
Successful implementation of GPRA requires direct linkages between an
agency’s goals and objectives and its budget justification. In its annual performance
plan, each agency is to align performance objectives with the program activity
structure contained in the President’s budget. In addition, the law calls for
performance budgeting pilots to provide information on the “direct relationship
between proposed program spending and expected program results and the
anticipated effects of varying spending levels on results.” In October 1999 (two years
behind schedule), OMB designated five pilot projects. GPRA requires that OMB
report to Congress on the experiences with the pilots by March 31, 2001, and
recommend whether performance budgeting in the more extensive form seen in the
pilots should be implemented throughout the federal government.
Progress in GPRA implementation has proved uneven to date. Some agencies
have yet to define adequately their goals, program objectives, and expected outcomes
and results, and to develop appropriate measures to gauge their attainment. There are
concerns about the costs and benefits of developing new results-oriented performance
measurement systems, about the lack of interagency coordination to use similar
measures to compare similar programs, and about the need to link Results Act
implementation to the everyday work of program mangers. Despite such unsettled
issues, it is well to keep in mind that GPRA differs in important respects from past
efforts at performance management and budgeting. Previous formulations, such as
PPBS and ZBB, were executive branch initiatives; in contrast, GPRA has a statutory
base, with its requirements set in public law. Unlike past efforts, which generally
lacked congressional linkages, GPRA provides for mandatory consultation with
Congress and the linking of management planning and budget preparation processes.
Financial Management Improvement
During the past two decades, Congress has enacted a series of laws to reform
and improve financial management in the federal government. The Federal Managers
Financial Integrity Act of 1982 (FMFIA), generally regarded as the first of these
measures, was intended to strengthen internal controls and accounting systems.66
However, by the end of 1989, after seven years of FMFIA implementation, only
limited progress had occurred, and the General Accounting Office “reported that the
government did not have the internal control systems necessary to effectively operate
its programs and safeguard its assets and that its accounting systems were antiquated
and second-rate.”67
6696 Stat. 814-815; 31 U.S.C. 3512. Arguably, the Inspector General Act of 1978 (discussed
elsewhere in this report), with its focus on increased accountability in the federal government
through improved audits and investigations, might be viewed as the earliest in this series of
related financial management reform laws.
67 U.S. General Accounting Office,
Financial Management: Federal Financial Management
Improvement Act Results for Fiscal Year 1999, AIMD-00-307 (Washington: September
2000), p. 7.
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The Chief Financial Officers (CFO) Act of 1990 followed, the culmination of a
bipartisan five-year effort to increase federal accountability.68 A major component of
the legislation is a new leadership structure for federal financial management,
consisting of two new positions within the Office of Management and Budget (OMB):
a Deputy Director for Management, to serve as the federal government’s chief
financial officer, and a Controller, to head the statutorily established Office of Federal
Financial Management. In addition, the law created 24 Chief Financial Officers within
the major executive departments and agencies, and an equal number of deputy
CFOs.69 Other provisions in the original act addressed improvement of financial
management systems, requirements for audited financial statements and management
reporting, and changes in audits and reporting requirements for government
corporations.
Each of the 24 agency CFOs reports directly to the agency head and is
responsible for all agency financial management operations, activities, and personnel.
The CFOs develop financial management budgets, produce financial reports, and
monitor budget execution. The 1990 law also established a Chief Financial Officers
Council, chaired by OMB’s Deputy Director for Management. Other members
include the Controller, the Fiscal Assistant Secretary of Treasury, and the 24 agency
CFOs. The CFO Council meets periodically to coordinate relevant agency activities,
and has developed into an important interagency entity.
An additional CFO joins the 24 existing CFOs in early 2001 as the result of a
provision in the Treasury and General Government Appropriations Act, 2000,
establishing a CFO within the Executive Office of the President (EOP).70 The new
CFO for the EOP generally has the same authority and performs the same functions
as the other agency CFOs, but the President has the discretion to determine that
certain statutory provisions applicable to other agency CFOs shall not apply to the
new position. Congress must be notified of any such exemptions.
Important amendments to the CFO Act have extended its original purview. In
1993, the Government Performance and Results Act (GPRA), building upon agency
financial information mandated by the CFO Act, stipulated new performance
measurement requirements, extending the initial language in the CFO Act regarding
“systematic measurement of performance” for selected activities.71
68104 Stat. 2838; codified as amended at 31 U.S.C., chapters 5, 9, 11, and 35; also 5 U.S.C.
5313-5315, 38 U.S.C. 201 note, and 42 U.S.C. 3533.
69 Of the 24 CFO positions, those in the 14 cabinet-level departments, the Environmental
Protection Agency, and the National Aeronautics and Space Administration are filled by
presidential appointees, confirmed by the Senate. The remaining eight CFO positions (for the
Agency for International Development, Federal Emergency Management Agency, General
Services Administration, National Science Foundation, Nuclear Regulatory Commission,
Office of Personnel Management, Small Business Administration, and the Social Security
Administration), along with all 24 Deputy CFO positions, are career slots, filled by agency
head appointment.
70113 Stat. 430; for provisions relating to the new CFO position, see sec. 638, 113 Stat. 475.
71107 Stat. 285.
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Provisions in the Federal Financial Management Act of 1994 substantially
expanded the requirements of the CFO Act concerning audited financial statements.72
Initially, agency heads subject to the CFO Act were to prepare and submit to OMB
audited financial statements for each revolving and trust fund and for accounts that
performed substantial commercial functions. In addition, a three-year pilot
program—eventually involving 10 of the original 23 agencies—commenced, requiring
preparation of audited financial statements for all agency accounts. The 1994
amendments extended the requirement for audited financial statements covering all
accounts to include all 24 CFO agencies. Beginning March 1, 1997, and annually
thereafter, agency heads have submitted to the OMB director “an audited financial
statement for the preceding fiscal year, covering all accounts and associated activities
of each office, bureau, and activity of the agency.” The fourth set of these financial
statements was due in March, 2000; 15 agencies received clean audit opinions on their
FY 1999 statements.73 The 1994 law also expanded the purview of audited financial
statements by requiring annual preparation of consolidated, governmentwide
statements covering all federal executive branch agencies. The Secretary of the
Treasury, in coordination with the director of OMB, submitted the first round of these
governmentwide financial statements to the President and Congress in March of 1998.
The Federal Financial Management Improvement Act (FFMIA) of 1996 built
upon the prior legislation and statutorily incorporated certain financial system
requirements established as executive branch policy.74 The statute sets a general
requirement for CFO agencies to “implement and maintain financial management
systems that comply substantially with federal financial management system
requirements, applicable federal accounting standards, and the United States
Government Standard General Ledger at the transaction level.” The FFMIA also
requires auditors to report on agency compliance with these requirements and agency
heads to correct deficiencies within certain time periods.
72Enacted as Title IV of the Government Management Reform Act of 1994, 106 Stat. 3412.
73U.S. General Accounting Office,
Financial Management: Federal Financial Management
Improvement Act Results for Fiscal Year 1999, p. 15.
74Enacted as Title VIII of the Omnibus Consolidated Appropriations Act for FY 1997, 110
Stat. 3009-389; 31 U.S.C. 3512 note.
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Developments: Restraints
Chadha Decision
To control the actions of the President and executive officers, Congress
established arrangements whereby a so-called legislative veto could be exercised over
delegated authority. While various legislative veto arrangements were created,
typically they mandated that the executive branch notify Congress of a proposed
action and then wait for a specified period of time, usually 60 to 90 days, before
actual implementation. During the waiting period, Congress could veto the proposed
action by a majority vote in both houses or in one house, or by a majority vote of a
single committee.
Although the legislative veto has some precedents in the period following the
Civil War, it came into prominence in the 1930s and the subsequent decades. The
Economy Act of 1932, for example, authorized the President to propose limited
reorganizations of the executive branch.75 A reorganization proposal, embodied in an
executive order, had to be transmitted to Congress for a 60-day review period. If
neither house, by majority vote, disapproved the proposal, it could then become
effective at the close of the review period. President Herbert Hoover had asked
Congress for a similar reorganization arrangement in 1929, and his first chance to
exercise the authority given him in 1932 occurred after his electoral defeat that year.
Congress disapproved his proposals for changes in 58 governmental activities,
preferring to leave any such reorganizations to the incoming President, Franklin D.
Roosevelt.
Nonetheless, the legislative veto arrangement was seen to offer advantages to
both the executive and the legislative branches. The President obtained a fixed
timeframe, of relatively short duration, before his proposals might become effective,
and, oftentimes, under terms which prohibited any amendment of his offerings.
Congress retained control of delegated authority through an arrangement far less
cumbersome than passing legislation, which might incur a presidential veto and,
therefore, require a two-thirds majority in each house to override.
Executive reorganization arrangements continued to make use of the legislative
veto over the next few years, with slight variations from the 1932 model. A 1939
version, for example, substituted a reorganization plan for the executive order and a
two-house veto for the one-house disapproval.76 The innovation also was introduced
in a few other areas, such as military and naval construction, the deportation of aliens,
and public works programs. Suspicions began to arise, as well, that the legislative
veto might not be constitutional. Attorney General Herbert Brownell proffered such
a view to President Dwight D. Eisenhower in 1955 regarding congressional
committee vetoes of proposed executive actions.
7547 Stat. 413.
7653 Stat. 36.
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As Congress attempted to redress the balance of power with the executive
branch in the 1970s, legislative vetoes began to proliferate. They appeared in such
major statutes as the War Powers Resolution of 1973,77 the Congressional Budget and
Impoundment Control Act of 1974,78 the Presidential Recordings and Materials
Preservation Act of 1974,79 the Hopi and Navajo Tribe Act of 1974,80 the Energy
Policy and Conservation Act of 1975,81 the National Emergencies Act of 1976,82 the
Emergency Unemployment Compensation Act of 1977,83 and the Airline Deregulation
Act of 1978.84
While Congress appeared to be quite well disposed to the legislative veto, others
were not. In a June 21, 1978, message to Congress, President Jimmy Carter, noting
that, in the pervious four years, at least 48 legislative veto provisions had been
enacted—“more than in the preceding twenty years—declared them “unnecessary,”
“unwarranted,” and “unconstitutional.”85 Others would agree, and a major national
debate ensued. Resolve, of sorts, came with a June 23, 1983, decision of the Supreme
Court in the
Chadha case concerning the legislative veto of the Immigration and
Nationality Act of 1952, which authorized the Attorney General to suspend the
deportation of aliens subject to a one-house veto.86 Relying on a strict reading of the
lawmaking process, Chief Justice Warren Burger, writing the majority opinion,
invalidated the one-house veto for violating both the Constitution’s principle of
bicameralism, which requires action by both houses of Congress, and presentation
clause, which requires that all congressionally approved bills be presented to the
President.87 Justice Byron White, one of two dissenters in the case, observed that the
ruling “sounds the death knell for nearly 200 other statutory provisions in which
Congress has reserved a ‘legislative veto’.”88
Following the
Chadha decision, Congress has tendered, and the executive branch
has accepted, more subtle and informal checks in place of the legislative veto. These
include requirements for written approval of executive actions by congressional
committees or an extracted pledge from executive officers to confer with appropriate
7787 Stat. 614.
7888 Stat. 297.
7988 Stat. 1695.
8088 Stat. 1712.
8189 Stat. 817.
8290 Stat. 1255.
8391 Stat. 39.
8492 Stat. 1705.
85U.S. General Services Administration, National Archives and Records Service, Office of the
Federal Register,
Public Papers of the Presidents of the United States: Jimmy Carter, 1978
(Washington: GPO, 1979), pp. 1146-1149.
8666 Stat. 163.
87
INS v.
Chadha, 462 U.S. 919 (1983).
88Ibid., p. 967.
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committees before proceeding. Clearly, however, the potentially powerful legislative
veto that Congress was expansively instituting in a variety of legislation during the
decade preceding the
Chadha ruling is defunct.
Impoundment Control and Item Veto Restraints
Congress exercises its “power of the purse” by enacting appropriations
measures, but the President has broad authority as chief executive in the
implementation stage of the federal budget process. Impoundment occurs when the
President withholds or delays the spending of appropriated funds. Over the years,
Congress has struggled with the challenge of maintaining some control over
impoundment actions while still allowing sufficient discretion for the executive branch
in implementing the budget.
Conflicts over the use of impoundments increased greatly during the Nixon
Administration, and eventually involved the courts as well as Congress and the
President. During these impoundment conflicts, Congress responded with not only
ad hoc efforts to restore individual programs, but also gradually more restrictive
appropriations language. Arguably, the most authoritative response was enactment
in 1974 of the Impoundment Control Act (ICA), which established a new framework
for congressional review of impoundment actions.89 The ICA differentiates deferrals,
or temporary delay in funding availability, from rescissions, or permanent
cancellations of designated budget authority, with different procedures for
congressional review and control of the two types of impoundments. In the case of
a rescission, the ICA provides that the funds must be released unless both houses of
Congress take action to approve the President’s rescission request within 45 days of
“continuous session”.
For the first few years after its enactment, there was little criticism of the ICA,
but dissatisfaction grew in the 1980s as the number of rescissions requested by the
President increased greatly while the number approved by Congress declined.90 Many
came to view the President as unduly restricted by the provisions in the ICA, and
sought to restore greater flexibility in impoundments so as to facilitate budgetary
savings. Some supported a constitutional amendment to grant the President authority
to veto individual items in a bill, as allowed to the governor in 42 states, and
consideration of impoundment reform became increasingly joined with the subject of
an item veto. However, legislative efforts to modify the framework for congressional
review of rescissions by the President ultimately proved successful, with the
enactment of the Line Item Veto Act of 1996.91
The Line Item Veto Act sought to provide the President with a functional
equivalent of an item veto, by granting the President “enhanced rescission authority”
89Enacted as Title X of the Congressional Budget and Impoundment Control Act of 1974, 88
Stat. 332; 2 U.S.C.681 et seq.
90For data on rescissions since 1974, see (name redacted),
“The Impoundment Control
Act of 1974: Restraining or Reviving Presidential Power?”
Public Budgeting & Finance, vol.
17, Fall 1997, pp. 42-49.
91110 Stat. 1200.
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to cancel certain items in appropriations measures and new entitlement provisions, as
well as certain narrowly applicable tax breaks. The act provided 30 days for
expedited congressional consideration of a disapproval bill to reverse the cancellations
contained in special presidential messages. Consequently, the burden of action with
regard to rescissions was reversed from that contained in the Impoundment Control
Act; absent congressional action, under the Line Item Veto Act, rescissions requested
by the President became permanent.
In 1998, the Supreme Court found the Line Item Veto Act unconstitutional on
the grounds that it violated the presentment clause.92 Subsequently, measures seeking
to provide the President with expanded rescission authority, by amending the
Impoundment Control Act in a constitutionally viable manner, were introduced in
Congress. The institutional tensions between the executive and legislative branches
inherent in the federal budget process continue; and additional efforts to modify the
existing framework for congressional review of impoundment actions by the
President, as established by the ICA in 1974, may occur.
Unfunded Mandates
Achieving a balance of power between the federal government and the states has
been an issue of debate since the founding of the Republic and ratification of the U.S.
Constitution by the states—from 1787 through 1790. Increased federal intervention
in domestic policy since the end of World War II, particularly in the 1960s through
the Great Society initiatives of the Johnson Administration, arguably resulted in a
decline in state sovereignty. Federal legislation and regulations preempted state
authority in such areas as civil rights, environmental and consumer protection, and
community development, and required that specific actions be taken by state and local
governments. For citizens unable to achieve redress at the state or local level, such
federal involvement was welcome. For advocates of state sovereignty, however, the
federal government, in some areas, had become too intrusive and powerful in
imposing requirements, often without providing funds to help state and local
governments meet those requirements.
Beginning in the late 1970s, some academics and state and local officials argued
that certain federal mandates had become unnecessary and costly. However, the issue
of federal intervention had already reached the Supreme Court, which ruled in 1976
that the commerce clause of the Constitution does not empower Congress to impose
federal regulation of the states’ “traditional governmental functions.”93 Debate
continued, however, and the issue again reached the Supreme Court in 1985.
Reversing itself, the Court held that states should, instead, seek relief from federal
regulation through the political process in Congress: “The political process ensures
that laws that unduly burden states will not be promulgated.”94 Subsequently, the
states’ advocates turned to Congress for mandate relief.
92
Clinton v.
New York City, 524 U.S. 417 (1998).
93
National League of Cities v.
Usery, 426 U.S. 833 (1976).
94Ibid.
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Unfunded mandates were perceived to be responsibilities, actions, or procedures
imposed on state and local governments, and other entities, through legislation,
regulations, or court decisions, with no provision for payments of the costs of
compliance. Various researchers and interest groups identified unfunded mandates
in a number of domestic policy issues, including age discrimination, clean air, energy
conservation, occupational safety, endangered species, and labor standards.
During the 103rd Congress, champions of unfunded mandate reform initiatives
gained support. Members considered 34 bills to arrest the perceived growth of
unfunded mandates, with two bills (H.R. 5128 and S. 993) receiving action. In the
closing months of 1994, prior to the election, House Republicans included unfunded
mandate reform in their Contract with America initiative. After the Republicans
gained control of the House, enactment of the unfunded mandates legislation occurred
in the first 100 days of the 104th Congress. President Clinton signed the Unfunded
Mandates Reform Act (UMRA) on March 22, 1995.95
The UMRA amends the Congressional Budget and Impoundment Control Act
to permit Congress to identify legislation proposing mandates and to decline to
consider legislation proposing unfunded intergovernmental mandates.96 It also
requires that the Congressional Budget Office study and report to Congress on the
magnitude and potential impact of mandates in proposed legislation.97 In response to
concerns over regulatory mandates, the act requires that federal agencies prepare
written statements identifying costs and benefits of a federal mandate that would be
imposed through the rulemaking process. The requirement applies to regulatory
actions determined to result in costs of $100 million or more in any one year.98 In all,
the UMRA is a tool Congress can use to ensure that the delicate tensions of the
federal system in the United States remain in balance.
Developments: Evolving
Executive Order vs. Statutory Policymaking
Although the Constitution does not explicitly and specifically authorize the
President to issue executive orders, Presidents have relied upon Article II executive
power, commander in chief authority, and responsibility for faithful execution of the
laws to justify issuance of executive orders.99 Two scholars have contended that the
ambiguity surrounding the President’s authority to issue executive orders has
enhanced his capability to act unilaterally.100 They also have argued that broadly
written statutes and the proliferation of statutes have contributed to the latitude
95109 Stat. 48.
962 U.S.C. 658b(a)(2).
972 U.S.C. 602(c)(2).
982 U.S.C. 1531-1538.
99Constitution of the United States, Article 2, Sections 1, 2, and 3, respectively.
100Terry M. Moe and William J. Howell, “The Presidential Power of Unilateral Action,”
Journal of Law, Economics, and Organization, vol. 15, April 1999, p. 133.
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Presidents enjoy.101 As new statutes are passed, they expand the President’s
responsibility and authority, and broadly-written statutes provide opportunities for
Presidents to define, interpret, clarify, and build upon statutory language.102
However, in the absence of a statutory policy pronouncement, the President may issue
an executive order to fill a policy vacuum.
Recent Presidents have capitalized on their capability and opportunities to act
unilaterally. This freedom to act has been manifested in the timing and contents of
executive orders, which vary, as do their significance and impact.
Occasionally, timing and volume are tied to events that necessitate unilateral
action. In the final six days of his tenure, President Jimmy Carter issued 11 executive
orders related to securing the release of Americans held hostage in Iran and providing
them financial compensation. On a more routine basis, transition and reelection
periods have witnessed an increase in the number of executive orders. A study of
executive orders issued between April 1936 and December 1995 indicates that, while
the start of a new President’s term does not result in a higher number of executive
orders, the end of a term may be notable for an increase in the quantity issued.103
Specifically, Presidents who were succeeded by a member of the other party signed
“nearly six additional orders ... in the last month of their term, nearly double the
average level.”104 When party control of the White House did not change following
a presidential election, there was “no corresponding increase in order frequency.”105
This study also found that reelection plays a role in the number of executive orders
signed and issued. Presidents who were running for reelection issued approximately
1.4 more executive orders per month—14 during the campaign season from January
1 through the end of October —than when they were not running for reelection.106
While most executive orders may be deemed fairly innocuous, the remainder
have had important implications for public policy, administrative processes,
government organization, and/or the separation of powers. Two-and-a-half months
after the United States formally entered World War II, President Franklin D.
Roosevelt initiated, through Executive Order 9066, the internment of Japanese-
Americans in relocation camps. Racial integration of the armed forces was set in
motion with Executive Order 9981signed by President Harry S. Truman. President
Dwight D. Eisenhower intervened, through Executive Order 10730, in the effort to
integrate Arkansas’ Little Rock Central High School. Presidents John F. Kennedy,
Lyndon B. Johnson, and Richard M. Nixon all issued executive orders designed to
combat racial discrimination (Executive Orders 11063, 11197, and 11246,
respectively). President Ford, in signing Executive Order 11821, required that
101Ibid., pp. 141, 143.
102Ibid., p. 143.
103Kenneth R. Mayer, “Executive Orders and Presidential Power,”
Journal of Politics, vol.
61, May 1999, p. 457.
104Ibid.
105Ibid.
106Ibid., p. 459.
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inflation impact statements accompany proposed legislation, rules, and regulations
originating in the executive branch. Men who resisted the draft during the Vietnam
War were the beneficiaries of President Jimmy Carter’s Executive Order 11967,
which implemented his pardon order. Through Executive Order 12291, President
Ronald Reagan brought agency rulemaking under the control of the Office of
Management and Budget and required cost-benefit analyses of rules. In signing
Executive Orders 12818 and 12800, President George H. W. Bush prohibited union-
only project agreements for federal projects, and required federal contractors to notify
employees of their right not to have to pay any union dues or fees for activities other
than collective bargaining, contract administration, and grievance adjustment. By
signing Executive Order 12889, President William J. Clinton helped to implement the
North American Free Trade Agreement.
Presidential use of executive orders has not gone unnoticed or unchallenged,
particularly in cases where the contents and purpose of an order are objectionable and
presidential encroachment on congressional legislative powers is alleged.107 There are
various means by which the effect, if not the contents, of an executive order can be
altered or voided through congressional action or initiative, a judicial ruling, or
subsequent presidential action. Should Congress object to an executive order, it
might deny funds necessary to implement the order or, if no constitutional authority
is cited for the order, Congress could alter the underlying statute in such a way as to
undermine the order. Another option, but one that has been tried with very little
success, is to write a statute designed to overturn an executive order. Between 1973
and 1997, when approximately 1,000 executive orders were issued, Congress
attempted to pass legislation on 37 occasions that would overturn certain orders, but
only three attempts succeeded and became law.108
If a proactive approach were preferred, Congress could include a sunset
provision in legislation or write more specific legislation, which would limit the
President’s opportunities and latitude in issuing executive orders. A tactic that has
failed, to date, is passing legislation designed to restrict the President’s use of
executive orders and/or make it easier for Congress to monitor that. Between 1973
and 1997, Congress tried three times, and failed in each attempt, to pass legislation
restricting the President’s power to issue executive orders. During the 106th
Congress, three bills and one concurrent resolution aimed at limiting the President’s
use of executive orders and/or their effect were introduced, but none was reported
from committee.
Court challenges to executive orders have been largely unsuccessful as well.
Between 1942 and 1996, approximately 4,000 executive orders were issued, and 86
of these were “challenged in (and accepted for consideration by) the courts.”109 Court
107 Usually, Congress acquiesces to presidential executive orders and, in some instances, has
legislatively ratified or codified an order, thereby establishing something of its own jurisdiction
in the policy area.
108Moe and Howell, “The Presidential Power of Unilateral Action,” pp. 165-166.
109Ibid., p. 175.
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rulings favored the President in 83.90% of these cases.110 A challenge to President
Truman’s Executive Order 10340, authorizing government seizure of the steel mills,
did result, however, in a ruling that was favorable to the plaintiff and a concurring
opinion that suggested there are degrees of legitimacy for executive orders. Associate
Justice Robert H. Jackson opined that the President’s position is weakest when his
executive order contradicts the will of Congress; the President’s position is strongest
when an executive order is based on the Constitution, statutes, or both; and that a
“zone of twilight” exists when an executive order falls in an area where the President
and Congress have concurrent authority, but Congress has not made its will known.111
On occasion, Presidents disagree with or wish to improve upon previously issued
executive orders. In any case, a President may amend or revoke, in part or in whole,
an executive order he, or a predecessor, has issued. A President also may issue an
executive order scheduled to expire on a certain date or under certain circumstances.
The Federal Register Act of 1934 requires the publication of executive orders
in the
Federal Register and subsequent amendments provided for their compilation
in Title 3 volumes of the
Code of Federal Regulations.112 Standardization of
executive orders began with the June 19, 1962, issuance of Executive Order 11030,
which, as subsequently amended, prescribes a systematic process for the preparation,
filing, and publication of executive orders (and proclamations).113 Preparation by the
originating federal agency includes citing the authority—constitutional, statutory, or
both— under which the order is issued.
The executive order is a useful and important device for Presidents, enabling
them to act quickly, when need be; to direct the operations of the executive branch;
and to ensure that laws are “faithfully executed.” Yet, in a system of government that
incorporates a series of checks and balances, self-restraint on the part of Presidents
and vigilance on the part of Congress help to alleviate concerns and questions that
surface, occasionally, about the presidential use of executive orders.
Outsourcing and Privatization
During the four decades after the termination of World War II, the federal
executive workforce steadily expanded, a reflection, at least in part, of the increasing
program responsibilities and tasks of the federal government during that period and
continued reliance upon career civil servants for their performance. Attempts to
reduce the size and cost of the federal government during the final decade of the
twentieth century prompted calls for contracting out, or outsourcing, certain
government functions for performance at reduced cost by the private sector and for
otherwise making some government activities available for assumption by the private
sector. Theoretically, when outsourcing, the government retains ultimate
110Ibid.
111
Youngstown Sheet and Tube Company v.
Sawyer, 343 U.S. 579 at 635-638 (1952).
11249 Stat. 500; 44 U.S.C. 1501-1511.
113Other instruments available to the President include letters, memoranda, and
announcements.
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responsibility for the performance of the function by a contractor; when privatizing,
the government effectively cedes responsibility for an activity to the private sector.
In actual practice, some hybrid organizations with both government and private sector
legal characteristics have emerged. For example, when the Federal Investigations
Division of the Office of Personnel Management (OPM) appeared to be ripe for staff
reductions in the mid-1990s due to a declining security clearance workload, the OPM
director sought to establish a private corporation to assume the mission and
employees of the division. The director obtained a feasibility study for creating such
a corporation, which would be eventually owned by its employees—a so-called
Employee Stock-Owned Plan. Despite some congressional opposition to the plan,
OPM pressed ahead, selecting American Capital Strategies to prepare a business plan.
A financial trustee was secured; a management team was established; and the United
States Investigative Service (USIS) was incorporated under the laws of Delaware in
April 1996. Four months later, USIS was reincorporated and 700 federal
investigations employees of OPM were separated from government employment and
became private employees of USIS. OPM awarded USIS a noncompetitive three-
year contract to conduct security clearance investigations.114
Both the Clinton Administration’s National Performance Review (NPR) and
congressional champions of the Republican’s Contract with America, as well as many
Members of Congress, proposed privatizing various government functions,
operations, and entities during the 1990s. However, the USIS example appears to be
the only successful privatization to have occurred during that period.
Another innovation proposed by the NPR was the creation of so-called
performance-based organizations (PBO). According to the NPR model, a federal
executive agency would, for a particular program area, separate service operation
functions from their policy components and place the former in a separate
organization, or PBO, reporting to the agency head. Policymaking for the program
area would remain with the agency. A three- to five-year framework document
between the PBO and the agency would be negotiated, setting out explicit goals,
measures, relationships, flexibilities, and limitations for the PBO. The organization
would also be given authority to negotiate alternative approaches for procurement and
civil service rules, which would be tied to increased accountability for results, the use
of unit cost accounting principles, achieving productivity and customer service goals,
and budgetary savings. An individual to fill the PBO’s chief executive position would
be appointed or hired on contract, through a competitive search, for a fixed term, such
as five years. The contract would reflect clear agreement on services to be delivered
and productivity goals to be achieved, and the chief executive would be personally
responsible for delivering agreed-upon services. Compensation for the chief executive
could be based on existing pay and award authorities; service fees collected by the
PBO, if any; or legislatively authorized rates, with a significant portion of such pay
contingent on performance. President Clinton’s FY1998 budget identified several
entities that were considered to be candidates for the PBO experiment, including the
National Technical Information Service, the Patent and Trademark Office, and the
114Stephen Barr, “OPM in a First, Acts to Convert an Operation into Private Firm,”
Washington Post, April 14, 1996, p. A4; Ronald P. Sanders and James Thompson,
“Reinventing Government: Live Long and Prosper,”
Government Executive, vol. 29, April
1997, pp. 50, 52-53.
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Seafood Inspection Program of the Department of Commerce; the Defense
Commissary Agency; the Saint Lawrence Seaway Development Corporation; the
Government National Mortgage Association and the Federal Housing Administration
of the Department of Housing and Urban Development; the Federal Retirement and
Insurance Service of OPM; and the United States Mint. None of this ambitious
effort, however, came to fruition. The one PBO that was realized was a congressional
creation, established with the enactment of the Higher Education Amendments of
1998 when the Department of Education’s student financial services were vested in
a new Office of Student Financial Assistance (OSFA).115 Headed by a chief operating
officer selected by the Secretary of Education, the OSFA was given independent
control of its budget and finances, personnel decisions and processes, procurements,
and other administrative and management functions. Compensation of the chief
operating officer is based partially upon organizational performance. In return for this
independence, the OSFA must improve student services, reduce costs, and increase
the accountability of administration. The office’s performance is measured in
accordance with a five-year plan, developed by the Secretary of Education and the
chief operating officer of the OSFA, that establishes measurable goals and objectives
for the organization. Furthermore, oversight of the organization is performed through
annual reports submitted to Congress through the Secretary, who maintains authority
to direct the PBO in the implementation of its functions. Another agency, the Patent
and Trademark Office, which was statutorily rechartered in 1999, claims to be a PBO,
but it does not follow the NPR model.116
Although no federal agency keeps exact data on contract workers, a recent
assessment of such outsourcing in the Washington, DC, metropolitan area found that,
while the number of local federal employees fell from 398,000 to 342,000, a 14%
decline, from FY1993 through FY1998, the number of local federal contract
employees increased from 205,000 to 300,000, a 46% increase, during the same
period. These employment shifts accounted for a 44% increase in contract spending,
rising from $19.9 billion in FY1993 to $28.7 billion in FY1999 (adjusted for inflation),
which resulted in an overtaking of the area federal payroll, which fell 3% in 1999
dollars. Overall job gains generated directly and indirectly by federal contract
spending across the metropolitan region increased 36%, from 377,000 personnel in
FY1993 to 514,000 personnel in FY1999. The jobs involved in such outsourcing
range widely from the unskilled—such as mail sorting, counting, and opening—to the
highly skilled—such as satellite map and navigation chart production and various
information technology tasks.117 Indeed, information technology (IT) work appears
to be a burgeoning area for outsourcing. According to one observer, “more federal
information technology jobs will be turned over to the private sector in coming years.
The only question is whether the numbers will be modest or mammoth.” The Bureau
of Labor Statistics predicts a shrinking federal IT workforce, dropping from a 1998
total of 1.8 million jobs to 1.6 million in 2008—a 9% loss. The bureau also projects
a rise in federal spending on IT outsourcing, increasing from $30.3 billion in 2000 to
115112 Stat. 1581, at 1604.
116See 113 Stat. 1537-564.
117Spencer S. Hsu, “Death of ‘Big Government’ Alters Region,”
Washington Post, Sept. 4,
2000, pp. A1, A14-A15.
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$40.3 billion in 2005.118 Recent research by Brookings Institution scholar Paul C.
Light, examining employment trends across the federal government during the 1990s,
found significant reductions in contractor employment positions for the decade at the
Department of Defense (-718,000), the Department of Energy (-424,000), and the
National Aeronautics and Space Administration (-53,500). Among those increasing
their contract employees during these years were the Department of Health and
Human Services (+113,900), the General Services Administration (+94,000), the
Department of Justice (+69,500), and the Department of the Treasury (+52,300). In
Light’s estimate, “the trend in many agencies to contract for services is likely to
continue its upward trajectory.”119
E-government
During the final decade of the 20th century, a new concept began to emerge in
American political and governmental parlance—e-government or electronic
government. A joint report of the National Performance Review and the Government
Information Technology Services Board,
Access America: Reengineering Through
Information Technology, issued February 3, 1997, introduced the new term.120
Almost three years later, in a December 17, 1999, memorandum to the heads of
executive departments and agencies, the President directed these officials to take
certain actions in furtherance of “electronic government.”121 During June 2000, the
concept of e-government, became part of the campaign offerings of the two major
party candidates for the presidency.122
The concept of electronic government is new in American public discourse.
Initially, the term was little more than a general recognition of a confluence of
information technology developments and the application and use of these
technologies by government entities. Subsequently, it has oftentimes been used as a
symbol, an ambiguous reference to both current applications of IT to government
operations and a goal of realizing more efficient and economical performance of
government functions. It is a dynamic concept of varying meaning and significance.
118William Matthews, “The Outsourcing Wave Rolls On,”
Federal Computer Week, vol. 14,
Sept. 25, 2000, p. 28.
119Paul C. Light, “Pressure to Grow,” pp. 26, 27.
120Office of the Vice President,
Access America: Reengineering Through Information
Technology; Report of the National Performance Review and the Government Information
Technology Services Board (Washington: GPO, 1997).
121The White House, Memorandum for the Heads of Executive Departments and Agencies,
Electronic Government (Washington: Dec. 17, 1999).
122See, for example, Christopher J. Dorobek, “Gore and Bush Make E-gov a Campaign
Issue,”
Government Computer News, vol. 19, June 19, 2000, p. 6.
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A variety of policy instruments support and shape the e-government concept,
including the Privacy Act of 1974,123 the Paperwork Reduction Act,124 the Computer
Security Act of 1987,125 the Electronic Freedom of Information Amendments,126 the
Clinger-Cohen Act,127 Executive Order 13011,128 the Government Paperwork
Elimination Act,129 and two Office of Management and Budget (OMB) memoranda
and section 501 of the Department of Transportation Appropriations Act for FY2001
concerning Web site privacy.130 In brief, these instruments seek to promote the use
of new information technology by government entities with a view to improving the
efficiency and economy of government operations. In addition, they seek to ensure
the proper management of these technologies and the systems they serve, their
protection from physical harm, and the security and privacy of their information.
As a consequence of the application of IT to certain government activities, e-
government has become a reality. These activities and related concerns include the
following.
!
Communication: Many agencies are managing e-mail communication with the
public in a manner analogous to telephone communication with the public.
Call centers, which serve as an agency contact point for the public (viewed, in
a market context, as “customers”) via a toll-free telephone number, are often
the agency receiving point for e-mail from the public. Indeed, there is growing
recognition of the importance of such centers for realizing “customer”
satisfaction.131
!
Information access: In an October 1993 memorandum asking agency heads
“to renew their commitment to the Freedom of Information Act, to its
underlying principles of government openness, and to its sound
administration,” President Clinton also urged each agency “to distribute
information on its own initiative, and to enhance public access through the use
of electronic information systems.”132 The Electronic Freedom of Information
1235 U.S.C. 552a.
12444 U.S.C. 3501 et seq.
125101 Stat. 1724.
126110 Stat. 3048; 5 U.S.C. 552.
127110 Stat. 642, 679, and 3009-393.
1283 C.F.R., 1996 Comp., pp. 202-209.
129112 Stat. 2681-749.
130P.L. 106-346.
131Christopher J. Dorobek, “Call Centers, User Satisfaction Are Crucial to E-gov Success,
Experts Say,”
Government Computer News, vol. 19, May 22, 2000, p. 12; also see U.S.
General Accounting Office,
Customer Service: Human Capital Management at Selected
Public and Private Call Centers, GAO Report GAO/GGD-00-161 (Washington: August
2000).
132U.S. National Archives and Records Administration, Office of the Federal Register,
Public
(continued...)
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Amendments of 1996 significantly reinforced this view by mandating the
creation of electronic reading rooms accessible to the public via the Internet.
Currently, agencies are making a large amount of information accessible to the
public through their websites.
!
Service delivery: Agencies are using websites to provide various services to
the American people and businesses. These efforts include online application
for federal student aid, wild horse adoption, government-owned homes, and
Social Security retirement benefits. Of related interest is the September 2000
launching of FirstGov, the single federal portal to all national government
Web sites. During its first fours days of operation, FirstGov connected an
estimated 250,000 users to 27 million web pages.133
!
Procurement: Agencies are using the Internet to facilitate agency purchases
of needed goods and services from the private sector. Details regarding such
procurement are offered on agency websites in various ways, including bid
opportunities and placement arrangements, special contracts, and unsolicited
proposals. Procurement opportunities for small businesses and for women-
and minority-owned businesses are often identified, as are acquisitions of
particular goods and services, such as information technology.
!
Security: Continuous efforts must be made to protect Internet transactions
among government entities and between them and the public against
obstruction, diversion, interception, and falsification. While the use of
encryption and digital signature capabilities assure the integrity of such
transactions, the Internet infrastructure must also be safeguarded; agency Web
site offerings must be protected against “hacking”; and agency information
technology systems, including Web sites and computers, must be regularly
cleared of viruses and similar such transgressing and destructive contaminants.
!
Privacy: Agencies must comply with requirements regarding their
management—i.e., collection, use, and storage—of personally identifiable
information, including Web site visitor data. While OMB had allowed
agencies to use so-called “sessions cookies” software, which facilitates
transactions at a Web site and monitors the actions of visitors only as long as
they are at the Web site, “persistent cookies,” which may track visitors’
actions after they leave an agency Web site and travel the Internet to other
Web sites, were prohibited. A provision in the Department of Transportation
Appropriation Act for FY2001 appears to have outlawed the use of all
“cookies” by a large number of agencies, including those in the Executive
Office of the President.
132(...continued)
Papers of the Presidents of the United States: William J. Clinton, 1993 (Washington: GPO,
1994), p. 1685.
133Tony Lee Orr, “FirstGov Connects Users to 27 Million Web Pages,”
Government
Computer News, vol. 19, Oct. 2, 2000, p. 3.
CRS-49
!
Management: For the executive branch, e-government management
concentrates largely in the leadership of OMB. The Paperwork Reduction Act
vests the OMB director with broad authority and responsibility for information
resources management and assuring agency application of, and adherence to,
computer and related systems security standards developed by the National
Institute of Standards and Technology (NIST) for the non-military/intelligence
community. OMB responsibility for oversight and enforcement of agency
implementation of the Privacy Act provides the OMB director with authority
to address agency Web site privacy practices and use, protection, and
disposition of personally identifiable information. The Clinger-Cohen Act
assigned the OMB director duties for coordinating the development and review
of IT purchase policy. It also mandated a chief information officer (CIO) for
each executive agency with responsibility for carrying out the information
management responsibilities assigned to the agencies by the PRA, as well as
some additional duties specified in its own provisions. E.O. 13011 brought the
CIOs together in a CIO Council chaired by the OMB deputy director for
management.
!
Maintenance: Continued maintenance of IT systems that underlie e-
government requires at least two resources—personnel and funds. Regarding
the first of these resources, the CIO Council is championing the recruitment,
retention, and development of IT professionals as members of the federal civil
service. The Office of Personnel Management is supporting this effort with a
special pay schedule for IT workers, increasing salaries as much as 33% for
entry-level and mid-level personnel, effective January 1, 2001.134 However,
actual practice—outsourcing—is contrary to the objective being pursued by
the CIO Council. According to one assessment, “more federal information
technology jobs will be turned over to the private sector in coming years. The
only question is whether the numbers will be modest or mammoth.” In fact,
as previously mentioned, the Bureau of Labor Statistics predicts a shrinking
federal IT workforce, dropping from a 1998 total of 1.8 million jobs to 1.6
million in 2008—a 9% loss. The bureau also projects a rise in federal spending
on IT outsourcing, increasing from $30.3 billion in 2000 to $40.3 billion in
2005.135
!
Oversight: For the executive branch, the OMB director is a principal overseer
of e-government, monitoring agency compliance with relevant statutes,
presidential directives, and OMB and NIST guidance. Within the departments
and agencies having them, CIOs performing statutory responsibilities and
duties for assuring compliance with PRA requirements and monitoring the
performance of IT programs also play an oversight role.136 Similarly, in
departments and agencies having them, Inspectors General exercise an
oversight capability, particularly with regard to protecting the transmission,
134Stephen Barr, “Salaries for Federal Tech Workers to Increase,”
Washington Post, Nov. 4,
2000, pp. A1, A12.
135William Matthews, “The Outsourcing Wave Rolls On,”p. 28.
136See 40 U.S.C. 1425(c)(2) and 44 U.S.C. 3506(a)(2).
CRS-50
storage, and processing of sensitive data in electronic form and formats.137 In
Congress, with potentially thousands of daily electronic transactions—for
information, benefits, services, and goods—occurring, rapidly and invisibly,
overseers must be alert to the development of administrative or managerial
problems that could quickly snowball, resulting in unnecessary hardship, waste,
misfeasance, or worse. The creation, maintenance, preservation, security,
integrity, and accessibility of the records of these transactions for possible audit
and review by overseers begs careful attention. When agency leaders and
program managers are consulted or brought before a congressional committee
or subcommittee for an oversight proceeding, the agency CIO and IG may also
be consulted or otherwise be found to be important participants. Finally, for
congressional and executive overseers alike, FirstGov, the single federal portal,
may prove to be a useful tool for scrutinizing governmentwide compliance with
certain e-government policies, such as Web site privacy notices, and other
uniform requirements for federal Web sites.
Decentralization of Personnel Management
Decentralization, as it relates to personnel management,138 is especially
associated with less hierarchical organizations and employees who are empowered to
make decisions in a more flexible and less restrictive policy environment. More
efficient organizations and more committed and satisfied employees are said to be
among the benefits of decentralization. Central management agencies, responsible for
overall policy, can significantly affect the extent to which decentralization occurs.
Over the course of the history of the federal civil service, various government study
panels, including the (Hoover) Commission on Organization of the Executive Branch
of the Government of 1949 and the National (Volcker) Commission on the Public
Service of 1989, have recommended less centralized management of the personnel
system. During the past two decades, calls for “letting the managers manage” have
been heard increasingly as the Civil Service Reform Act (CSRA) of 1978139 and the
Federal Employees Pay Comparability Act (FEPCA) of 1990140 underwent
implementation and the initiatives of the National Performance Review (later renamed
the National Partnership for Reinventing Government) were undertaken during the
years of the Clinton Administration.
The CSRA established the Office of Personnel Management (OPM) as the
government’s central personnel agency. Its predecessor, the Civil Service
Commission (CSC), had been created in 1884 by the Pendleton Act—which
established a merit system for federal civil servants—to implement that law and to
137See “Security, Information Technology, and Facilities,”
Journal of Public Inquiry, Spring-
Summer 2000, pp. 28-30.
138The term “personnel management” evolved into “human resources management,” which,
in turn, appears to be giving way to the term “human capital.”
13992 Stat. 1111.
140104 Stat. 1427.
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devise civil service rules and regulations.141 The “[c]ommission emerged as a central
personnel agency for the entire Federal Government, almost by default, as expanded
duties were continually assigned to it.” In a January 1937 report, the President’s
(Brownlow) Committee on Administrative Management, another government study
panel, had recommended that a new Civil Service Administration serve as the central
personnel management agency and perform most of the CSC functions, but the
proposal was not accepted. What evolved, according to one assessment, was a CSC
with “many faces: its roles are confusing and in many senses contradictory. It is at
once policeman, prosecutor, defender, and judge. It is an advocate before the
Congress and an agent of the Congress; a security sleuth of, and “union” for,
employees; a rulemaker, an inspector, a disciplinarian, and a management consultant
to other agencies; an adviser to and instrument of the President; an insurance agency;
and a public relations office for the government in general.”142 The CSRA embodied
the hope that a new single-headed agency would provide more effective leadership.
By giving OPM the leadership role in federal personnel management, it was believed
that the agency would be able to concentrate on planning and administering an
effective governmentwide program of personnel management. “Without the demands
generated by a heavy, day-to-day workload of individual personnel actions, OPM
should provide the President, the civil service, and the Nation with imaginative public
personnel administration.”143
Some of that ingenuity rested with demonstration projects, authorized by CSRA,
to experiment with different personnel management methods.144 Perhaps the best
known of the demonstration projects was the China Lake experiment, undertaken at
two naval weapons laboratories in California. Begun in the spring of 1980, the
project simplified the systems for classifying jobs; hiring, promoting, and paying
personnel (used pay for performance in the framework of broad pay bands); and
increased the discretion of managers to manage the workforce. It was made
permanent in 1994. The results at China Lake prompted calls for additional
demonstration projects and the application of their features to other agencies. The
Reagan Administration submitted a legislative proposal to Congress, the Civil Service
Simplification Act, to institute the China Lake reforms throughout government, but
it was not considered. During the 1980s and into the early 1990s, OPM delegated
some personnel authorities to the agencies, most notably those covering examination
and hiring, and assumed more of an oversight role. Two other noteworthy
demonstration projects were undertaken. One, begun at the Department of
Agriculture in the spring of 1990, featured a streamlined hiring processes. It was
made permanent in 1998. The other, begun at McClellan Air Force base, featured
14122 Stat. 43.
142U.S. Congress, House Committee on Post Office and Civil Service, Subcommittee on
Manpower and Civil Service,
History of Civil Service Merit Systems of the United States and
Selected Foreign Countries Together with Executive Reorganization Studies and Personnel
Recommendations, Compiled by the Library of Congress, Congressional Research Service,
committee print, 94th Cong., 2nd sess. (Washington: GPO, 1976), pp. 287-288.
143U.S. Congress, House Committee on Post Office and Civil Service,
Legislative History
of the Civil Service Reform Act of 1978, committee print, 96th Cong., 1st sess., vol. 2
(Washington: GPO, 1979), p. 1470.
1445 U.S.C. Chapter 47.
CRS-52
organizationwide quality and productivity measures. It was completed in February
1993. FEPCA authorized flexibilities for recruitment, relocation, and retention.
Efforts to reform the civil service during the Clinton Administration occurred
within the framework of the NPR. Vice President Gore, at the President’s direction,
supervised the NPR effort, which began as an intensive six-month evaluation of
government operations and management. Among its initial September 1993 reports
was one on OPM. That assessment identified OPM as a leader and source of expert
advice concerning a broad range of human resources management matters. For the
immediate future, the NPR envisioned OPM advising the President on issues affecting
the management of federal employees; demonstrating commitment to diversity;
planning for development of the workforce of the future; identifying strategies for
providing the training essential to achieve a cultural shift toward more entrepreneurial
management; conducting research, providing consulting services, and advising
agencies on best practices; coordinating and sponsoring interagency cooperation on
common issues; influencing governmentwide change; and leading by example.145 A
second NPR report,
Reinventing Human Resource Management, included among its
14 recommendations proposals for a flexible hiring system, a flexible job classification
system (which could apply broad pay bands), and a strengthened system for dealing
with poor performers. In trying to meet the requirement for a stronger leadership role
to transform human resource management functions, OPM has emphasized personnel
flexibilities currently available to agencies, labor-management partnerships, and
amendments to broaden generally the authority of the laws on demonstration projects
and recruitment and retention allowances. Legislative proposals including these
amendments were offered in the 104th and 105th Congresses (hearings were held in
both congresses) and submitted to the Office of Management and Budget in the 106th
Congress, but saw no further action.146 Agency impatience has led to requests that
Congress authorize separate personnel flexibilities; noteworthy are the flexibilities
enacted in the Internal Revenue Service Restructuring and Reform Act of 1998.147
The December 31, 1994 retirement of the Federal Personnel Manual (FPM), which
provided “over 10,000 pages of policies, regulations, guidance, and processing
instructions” to the agencies, was one of the most significant outcomes of the NPR.148
145U.S. Office of the Vice President,
From Red Tape to Results: Creating a Government
That Works Better & Costs Less; Report of the National Performance Review: Office of
Personnel Management, Accompanying Report of the National Performance Review
(Washington: GPO, 1993), p. 8.
146In the President’s FY2001 budget, the Clinton Administration advanced three major Federal
Aviation Administration management reforms, including linking employee pay scales to
market rates and implementing a system that ties pay to the achievement of individual and
agency performance targets. The director of the Federal Bureau of Investigation may conduct
demonstration projects for much the same purpose.
147112 Stat. 685.
148U.S. Office of the Vice President,
From Red Tape to Results: Creating a Government
That Works Better & Costs Less; Report of the National Performance Review: Reinventing
Human Resource Management, Accompanying Report of the National Performance Review
(Washington: GPO, 1993), p. 77.
CRS-53
Efforts to decentralize personnel management further appear likely to continue.
Over four days in June 1999, public administration practitioners and scholars
discussed the future of public service at the Wye River Plantation in Maryland.
Hoping to foster debate, the participants agreed on aspects of a broad vision of the
future, including these: “Central agency that enables agencies, especially managers,
to fulfill the personnel function for themselves”; “Treating human resources as an
asset and an investment”; and “Labor-management partnership based on mutual goals
of successful organization and employee satisfaction.”149 One scholar provided some
cautionary advice about the road to administrative reform: “The most fundamental
point to be made is that reform of the public sector is a political exercise that is rarely,
if ever, informed unambiguously by organization theory. ... In the public sector,
politics and ideology continue to play a crucial role in the selection of the mechanisms
that are supposed to make government (in the words of Vice President Gore) ‘work
better and cost less’.”150 Another scholar expressed an enduring principle: “The
fundamental purpose of government management remains what it has been since
1789; the implementation of the laws passed by Congress.151
149Patricia Wallace Ingraham, et al., “People and Performance: Challenges for the Future
Public Service—the Report from the Wye River Conference,”
Public Administration Review,
vol. 60, Jan./Feb. 2000, p. 58.
150B. Guy Peters, “What Works? The Antiphons of Administrative Reform,” In
Taking Stock:
Assessing Public Sector Reforms, edited by B. Guy Peters and Donald J. Savoie (Montreal:
McGill-Queens University Press, 1998), pp. 79, 100.
151U.S. Congress, Senate Committee on Governmental Affairs, Subcommittee on Oversight
of Government Management, Restructuring, and the District of Columbia,
Has Government
Been Reinvented, hearing, 106th Cong., 2nd sess., May 4, 2000 (Washington: transcript
awaiting publication).
CRS-54
Federalism
As the United States underwent demobilization and reconversion in the aftermath
of World War II, growing concern about the condition of American federalism—the
relationships among national, state, and local governments—prompted the 1953
chartering of a temporary Commission on Intergovernmental Relations to review
federal assistance to state and local governments and to assess the fiscal capacity of
the national government and the states to undertake various activities of national
importance.152 The panel’s June 1955 report identified several occurrences—“war
and economic crisis”; “intensified industrialization and population shifts from rural to
urban areas; new advances in transportation and communications; and, flowing from
these developments, greatly accelerated mobility of people and interchange of
ideas”—that had contributed to “vast expansions of National activities.”153 Not
without controversy, the report urged a realignment of federal and subnational
authority: “reserve National action for residual participation where State and local
governments are not fully adequate, and for the continuing responsibilities that only
the National Government can undertake.”154
Four years later, in 1959, Congress established a permanent agency—the
Advisory Commission on Intergovernmental Relations (ACIR), a bipartisan body of
26 members representing federal, state, and local governments—and charged it with
monitoring and reporting to Congress on the growing complexities of
intergovernmental relations and the state of American federalism.155 The commission
was terminated in 1995 as an economy initiative.
The creation of the ACIR came on the cusp of two significant periods in
American federalism during the 20th century. The first of these, lasting from 1901 to
1960, has been called the era of Cooperative Federalism, and was characterized by
widening federal involvement in social, economic, and environmental policy. It was
during this era that the national income tax and the grant-in-aid system were
mandated. Indeed, the federal grant system, which expanded in response to the Great
Depression of the 1930s, fundamentally changed the power relationships between
federal and state governments.
The second or subsequent period, from 1960 to 1968, has been denominated as
the era of Creative Federalism. President Lyndon B. Johnson’s Great Society
programs were the embodiment of this era. Creative Federalism and Great Society
programs, including the War on Poverty, sought to expand the national government’s
role in an effort to achieve socially desirable outcomes. Prior to the Johnson
Administration, federal involvement in domestic policy was undertaken as a necessary
evil in order to legitimize intrusion into state and local affairs. Under the new theory
15267 Stat. 145
153U.S. Commission on Intergovernmental Relations,
The Commission on Intergovernmental
Relations: A Report to the President for Transmittal to the Congress (Washington: June
1955), p. 1.
154Ibid., p. 6.
15573 Stat. 703.
CRS-55
of federalism, involvement of the national government was justified as long as
Congress could establish a national purpose for its actions.
During the past 32 years, the roles of national, state, and local governments have
fluctuated as the courts, the executive branch, Congress, state and local governments,
and the electorate have sought to determine their appropriate status within the system
of federalism. This era of Contemporary Federalism, from 1970 to the present, has
been characterized by:
! shifts in the intergovernmental grant system—from categorical grants to
revenue sharing, then to block and performance grants;
! the evolving awareness of the fiscal impact of unfunded federal mandates on
state and local governments, which culminated in the passage of the Unfunded
Mandates Act of 1995;156
! debates over the federal preemption of state authority—the most recent
infractions, according to state and local government officials, occurring with
the passage of the Telecommunications Act of 1996 and the Internet Tax
Freedom Act of 1998;157
! the growth of federal regulation and subsequent efforts to reduce the federal
regulatory burden on states and local governments, which culminated in the
passage of the Federal Financial Assistance Improvement Act of 1999;158
! the emergence of the states as laboratories of innovation in such areas as
economic development, as illustrated by the enactment of state enterprise zone
legislation by 36 states well before the passage of similar federal legislation;159
and
! the movement to devolve greater authority to state and local governments in
the name of the New Federalism, the Temporary Assistance to Needy Families
Act of 1996 being the most recent, notable example.160
During the 1970s, Presidents Richard M. Nixon and Gerald R. Ford sought to
redirect power relations within the federal system, using principally revenue sharing
and the consolidation of federal aid programs into six special revenue sharing
programs. The intent of President Nixon’s New Federalism initiative was to shift
156109 Stat. 48.
157The Telecommunications Act of 1996 (110 Stat. 56) preempted state and local zoning and
land use authority in the placement of cellular towers; the Internet Tax Freedom Act (112
Stat. 2681-719) placed a three-year moratorium on state taxation of internet commerce.
158113 Stat. 1486. The statute directs federal agencies to streamline and simplify applications
and administrative and reporting requirements for federal grants.
159107 Stat. 543.
160110 stat. 2110.
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funds, authority, and responsibility to the states and local governments in an effort to
manage more effectively the intergovernmental grant system.
The election of Ronald Reagan, who was regarded by many as a defender of
state’s rights, coupled with the American people’s growing dissatisfaction with the
national government, revived and elevated the federalism debate after a lull during the
presidency of Jimmy Carter. President Reagan sought not merely to reform the
federalism system at the edges, but also to pursue a fundamental restructuring of the
system through policies and initiatives to strengthen the role of states. In his 1981
inaugural address, he stated that “the federal government did not create states; the
states created the federal government.” This statement expressed the sentiments found
first in the Virginia and Kentucky Resolution of 1798 and the Webster-Hayne debate
of 1830, which championed such ideas as state-centered federalism, state sovereignty,
and the doctrine of nullification.161 The Reagan Administration achieved some
success early in its first term with the Omnibus Budget Reconciliation Act, which
consolidated a number of revenue sharing programs into nine block grants.162 The
administration was not successful in the second phase of its New Federalism initiative,
which would have reallocated federal and state responsibility and resources for
welfare, food stamps, and medicare, and would have turned back revenue sources to
the states.
During the 1990s, Congress and the executive branch continued to debate the
limits of federalism and the role of the federal, state, and local governments. The
1994 elections brought the Republicans majority status in the House of
Representatives after they had campaigned, in part, on a promise to reduce the size
and reach of the federal government. The Unfunded Mandates Reform Act of 1995,
discussed earlier in this report, requires the Congressional Budget Office (CBO) to
identify unfunded federal mandates in any legislation reported from a committee if the
mandate total exceeds $50 million in the case of state and local government or $100
million in the case of the private sector. The act also requires CBO to assess the
cost/benefit impact of federal legislation containing unfunded federal mandates on
state and local governments and on the private sector. On several issues, the party’s
leadership took positions contrary to its long held state sovereignty orthodoxy. For
instance, a Republican controlled Congress supported the Internet Tax Freedom Act,
which usurped state taxing authority over Internet transactions. For their part,
Democrats, through the presidency of William Clinton, sought to reduce red tape and
make the federal government more responsive to citizen needs. The Clinton
Administration’s National Performance Review sought to achieve management
efficiencies throughout federal agencies and programs. President Clinton also sought
to affirm the primacy of the national government in E.O. 13083 of May 4, 1998,
concerning federalism.163 The order noted the supremacy of the federal government
and espoused a set of principles that many state and local officials felt subordinated
the importance of the states as co-equal partners. Rebuffed in this attempt by state
and local governments and the Republican controlled Congress, President Clinton
161 The doctrine of nullification held that any state could suspend within its boundaries the
operation or implementation of any federal law it deemed unconstitutional.
16295 Stat. 357.
163See 3 C.F.R., 1998 Comp., pp. 146-149.
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issued E.O. 13132 of August 4, 1999, which sought to balance the rights and
responsibilities of the states with the authority of the federal government. The order
requires federal agencies to develop an ongoing consultative process involving state
and local government officials before issuing regulations having federalism
implications.164
During the last half of the 20th century, the Supreme Court also played a major
role in interpreting the powers, duties, and responsibilities conferred on national and
state governments by the United States Constitution. Its noteworthy decisions
concerning federalism include
National League of Cities v.
Usery, in which the Court
addressed one of the fundamental issues in federalism: to what extent may Congress
impose upon the sovereignty of the states? In its 1976 ruling, the Court found that
1974 amendments to the Fair Labor Standards Act extending hour and wage coverage
to state and local public employees violated state sovereignty as protected by the 10th
Amendment.165 Nine years later, in
Garcia v.
San Antonio Metropolitan Transit
Authority, the Court revisited the issue of state sovereignty and federally imposed
requirements on state and local government, holding that the 10th Amendment does
not protect state and local governments from compliance with the Fair Labor
Standards Act. The Court also declared that the states must find redress from
congressional actions through the political or legislative process and not the
judiciary.166
In federalism-related cases decided during the final decade of the 20th
century—several of them decided by narrow margins, including
New York v.
United
States in 1992,
United States v.
Lopez in 1995, and
Seminole Tribe of Florida v.
Florida in 1996—the Court, in the view of some scholars, took a more activist role
in limiting the power of the federal government and narrowing its interpretation of the
commerce clause in favor of the states. In
New York v.
United States, the Court
declared unconstitutional provisions of the Low Level Radioactive Waste Policy
Amendments Act of 1985, and found that the federal government could not compel
states to establish sites for the disposal of non-federal radioactive waste generated by
businesses within their borders.167 In
United States v.
Lopez, the Court ruled that the
Drug Free School Zone Act of 1990 could not be justified under the Constitution’s
commerce clause and was, therefore, unconstitutional.168 In 1996, in the
Seminole
Tribe of Florida case, the Court found unconstitutional a provision in the Indian
Gaming Regulatory Act of 1988 that gave tribes the right to sue states in federal court
to compel good faith negotiations in establishing a compact between the states and
Indian tribes allowing the tribes to undertake gambling activities. The Court ruled
that allowing tribes to sue states in federal court was unconstitutional because it
164See 3 C.F.R., 1999 Comp., pp. 206-211.
165426 U.S. 833 (1976).
166469 U.S. 528 (1985).
167505 U.S. 144 (1992).
168514 U.S. 549 (1995).
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violated the 11th Amendment restriction prohibiting any person of another state or
foreign land from suing a state in federal court.169
By contrast, the Court also rejected the state sovereignty argument in
U.S. Term
Limits, Inc. v. Thornton. By a 5-4 majority, the Court ruled that term limit legislation
enacted by several states was unconstitutional, and it reaffirmed the concept of dual
citizenship–that is, being a citizen both of the nation and of one’s state of residence,
being governed by both state and federal laws, and being afforded the rights and
responsibilities of both the federal and one’s state constitutions.170 Associate Justice
Anthony M. Kennedy, in a concurring opinion, noted that term limits violate the
fundamental principles of federalism. He argued that there exists a federal right to
citizenship with which the states may not interfere.171
The federalism debate of the past 50 years borrows much from the earlier
debates during the infancy of the Republic. The federalism pendulum during the latter
half of the 20th century has moved from favoring a strong role for the national
government toward being increasingly state centered. Social, economic,
technological, and other factors will affect, and be affected by this dynamic system of
governance. The central question remains: what are the appropriate roles for each
level of government within the context of American federalism?
CRS reports and issue briefs pertaining to the trends and developments discussed
above are identified in the reading list at the end of this report.
169517 U.S. 44 (1996).
170514 U.S. 779 (1995).
171Ibid., pp. 838-845.
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For Further Reading
CRS Report 95-518,
American Federalism, 1776-1997: Significant Events, by
(name redacted).
CRS Report RL30745,
Electronic Government: A Conceptual Overvew, by (name
redacted).
CRS Report RL30183,
Federal Regulations and the Federal Register: Statistical
Measurements, 1976-1998, by (name redacted).
CRS Issue Brief IB89148,
Item Veto and Expanded Impoundment Proposals, by
(name redacted).
CRS Report RL30596,
The National Performance Review and Other Government
Reform Initiatives: An Overview, 1993-1999, by (name redacted), (name redac
ted), and (name redacted).
CRS Report 97-740,
Number of Full-Time Political Appointees in the Executive
Branch, 1980-1997, by (name redacted).
CRS Report RL30533,
The Quasi Government: Hybrid Organizations with Both
Government and Private Sector Legal Characteristics, by (name redacted).
CRS Report 98-141,
Statutory Offices of Inspector General: A 20th Anniversary
Review, by (name redacted) and (name redacted).
CRS Report 98-379,
Statutory Offices of Inspector General: Establishment and
Evolution, by (name redacted).
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